54984 Federal Register / Vol. 72, No. 187 / Thursday, September 27, 2007 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AU77 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for Ceanothus ophiochilus 

(Vail Lake ceanothus) and 

Fremontodendron mexicanum 

(Mexican flannelbush) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), are 

designating critical habitat for 

Ceanothus ophiochilus (Vail Lake 

ceanothus) and Fremontodendron 

mexicanum (Mexican flannelbush) 

under the Endangered Species Act of 

1973, as amended (Act). In total, 

approximately 431 acres (ac) (175 

hectares (ha)) of federally-owned land 

fall within the boundaries of the critical 

habitat designation for these two 

species. Approximately 203 ac (82 ha) of 

land in Riverside County, California, are 

being designated as critical habitat for C. 

ophiochilus, and approximately 228 ac 

(93 ha) of land in San Diego County, 

California, are being designated as 

critical habitat for F. mexicanum. Of the 

approximately 283 ac (115 ha) proposed 

for designation for C. ophiochilus, 

approximately 80 ac (33 ha) of privatelyowned land covered by the Western 

Riverside County Multiple Species 

Habitat Conservation Plan (MSHCP) 

have been excluded from critical habitat 

for C. ophiochilus under section 4(b)(2) 

of the Act. Of the approximately 361 ac 

(147 ha) proposed for designation for F. 

mexicanum, approximately 133 ac (54 

ha) of privately-owned land covered by 

the San Diego Multiple Species 

Conservation Plan (MSCP) have been 

excluded from critical habitat for F. 

mexicanum under section 4(b)(2) of the 

Act. 

DATES: This rule becomes effective on 

October 29, 2007. 

ADDRESSES: Comments and materials 

received, as well as supporting 

documentation used in the preparation 

of this final rule, will be available for 

public inspection, by appointment, 

during normal business hours, at the 

U.S. Fish and Wildlife Service, Carlsbad 

Fish and Wildlife Office, 6010 Hidden 

Valley Road, Carlsbad, CA 92011 

(telephone 760–431–9440). The final 

rule, economic analysis, and maps will 

also be available via the Internet at 

http://www.fws.gov/carlsbad/. 

FOR FURTHER INFORMATION CONTACT: Jim 

Bartel, Field Supervisor, Carlsbad Fish 

and Wildlife Office (see ADDRESSES); 

telephone 760–431–9440; facsimile 

760–431–5901. If you use a 

telecommunications device for the deaf 

(TDD), call the Federal Information 

Relay Service (FIRS) at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Background 

It is our intent to discuss only those 

topics directly relevant to the 

designation of critical habitat in this 

final rule. For more information on 

Ceanothus ophiochilus and 

Fremontodendron mexicanum, refer to 

the final listing rule published in the 

Federal Register on October 13, 1998 

(63 FR 54956), or the proposed critical 

habitat rule published in the Federal 

Register on October 3, 2006 (71 FR 

58340). 

Species Descriptions and Life History 

No new information pertaining to the 

descriptions or life histories of these 

species was received following the 2006 

proposed designation of critical habitat 

for each species; therefore, please refer 

to the proposed critical habitat 

designation published in the Federal 

Register on October 3, 2006 (71 FR 

58340) for a discussion of the species 

description and life history for these 

two species. 

Ecology and Habitat 

No new information pertaining to the 

ecology or habitat of these two species 

was received following the 2006 

proposed designation of critical habitat 

for each species. Therefore, please refer 

to the proposed critical habitat 

designation published in the Federal 

Register on October 3, 2006 (71 FR 

58340), for a discussion of the ecology 

and habitat for these two species. 

Distribution 

In 2007, an occurrence of 

Fremontodendron mexicanum was 

documented at the historical 

‘‘Woodwardia Canyon’’ occurrence on 

Otay Mountain, which was last 

documented in 1936 (Snapp-Cook 2007, 

p. 1). Prior to the rediscovery of this 

occurrence, the exact location of 

‘‘Woodwardia Canyon’’ was difficult to 

discern from existing records. There 

were no maps of ‘‘Woodwardia Canyon’’ 

and the California Natural Diversity 

Database (CNDDB) cited ‘‘Woodwardia 

Canyon’’ in two separate areas (CNDDB 

2005, p. 1 and p. 3). The rediscovered 

occurrence is located on Otay Mountain 

0.3 miles (mi) (0.5 kilometers (km)) to 

the southwest of the known occurrence 

of F. mexicanum in Little Cedar Canyon, 

and is not within the area designated as 

critical habitat. Approximately 500 F. 

mexicanum were documented at this 

rediscovered occurrence (Snapp-Cook 

2007, p. 1). The significance of this 

occurrence and its impact on designated 

critical habitat will need to be further 

evaluated by the Service. Appropriate 

action, if any, will be addressed in a 

future rulemaking. For a detailed 

discussion of the distribution of F. 

mexicanum and Ceanothus ophiochilus 

documented prior to this final 

designation, please refer to the proposed 

critical habitat designation published in 

the Federal Register on October 3, 2006 

(71 FR 58340). 

Previous Federal Actions 

On August 10, 2004, the Center for 

Biological Diversity and California 

Native Plant Society challenged our 

failure to designate critical habitat for 

these two species as well as three other 

plant species (Center for Biological 

Diversity, et al. v. Gale Norton, 

Secretary of the Department of the 

Interior, et al., C–04–3240 JL, N. D. Cal.). 

In a Settlement Agreement dated 

December 21, 2004, we agreed to submit 

for publication in the Federal Register 

a proposed designation of critical 

habitat, if prudent and determinable, on 

or before September 20, 2006, and a 

final determination by September 20, 

2007. As part of the 2006 proposed 

designation we determined that it was 

prudent to designate critical habitat for 

each of these two species. The 

combined proposed critical habitat 

designation for both species was signed 

on September 18, 2006, and published 

in the Federal Register on October 3, 

2006 (71 FR 58340). This final rule 

completes the Service’s obligations 

regarding these species under the 

December 21, 2004, settlement 

agreement. 

A draft economic analysis (DEA) for 

the proposed designation was 

completed on March 2, 2007, and a 

notice of availability for this DEA was 

published in the Federal Register on 

April 5, 2007 (72 FR 16756). Publication 

of the notice of availability opened a 

public comment period for the draft 

economic analysis of the proposed 

designation as well as the proposed 

designation from April 5, 2007, to May 

7, 2007. Please refer to the ‘‘Previous 

Federal Actions’’ section of the 

proposed critical habitat rule for 

Ceanothus ophiochilus and 

Fremontodendron mexicanum, which 

published in the Federal Register on 

October 3, 2006 (71 FR 58340) for a 

discussion of additional Federal actions 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 187 / Thursday, September 27, 2007 / Rules and Regulations 54985 

that occurred prior to the designation of 

critical habitat for each species. 

Summary of Comments and 

Recommendations 

We requested written comments from 

the public on the proposed designation 

of critical habitat for Ceanothus 

ophiochilus and Fremontodendron 

mexicanum in the proposed rule that 

published on October 3, 2006 (71 FR 

58340), and in the notice of availability 

of the DEA published on April 5, 2007 

(72 FR 16756). We also contacted 

appropriate Federal, State, and local 

agencies; scientific organizations; and 

other interested parties and invited 

them to comment on the proposed rule 

and the DEA. 

During the comment period that 

opened on October 3, 2006, and closed 

on December 4, 2006, we received three 

comments directly addressing the 

proposed critical habitat designation: 

Two from peer reviewers and one from 

the County of San Diego. We did not 

receive any requests for a public hearing 

during this first comment period. A 

second comment period opened on 

April 5, 2007, to allow for comment on 

the DEA and the proposed critical 

habitat. During the comment period that 

opened on April 5, 2007, and closed on 

May 7, 2007, we received seven 

comments directly addressing the 

proposed critical habitat designation 

and the draft economic analysis. Of 

these latter comments, two were from 

peer reviewers, one was from a Federal 

agency, two were from local 

governments, one was from an 

organization, and one was from an 

individual. 

Peer Review 

In accordance with our policy 

published on July 1, 1994 (59 FR 

34270), we solicited expert opinions 

from five knowledgeable individuals 

with scientific expertise that included 

familiarity with the species, the 

geographic region in which the species 

occurs, and conservation biology 

principles. We received responses from 

four of the peer reviewers. The peer 

reviewers generally concurred with our 

methods and conclusions and one peer 

reviewer commented that the 

information for Fremontodendron 

mexicanum was well researched and 

complete. 

All comments are addressed in the 

following summary and incorporated 

into the final rule as appropriate. 

Peer Reviewer Comments 

1. Comment: One peer reviewer 

requested that we clarify the statement 

that Ceanothus ophiochilus is found on 

metavolcanic substrate. The peer 

reviewer indicated that the 1977 

Jennings Geologic Maps do not indicate 

any metavolcanic substrate, only gabbro 

substrate in the vicinity of species 

occurrences. 

Response: We reviewed the soils 

information for this species. Geological 

maps that are more recent than the 1977 

Jennings Geologic Maps are available. 

These maps indicate that the area 

around Vail Lake and in the Agua Tibia 

Wilderness, where Ceanothus 

ophiochilus is found, consists of 

metavolcanic, metasedimentary, and 

Gabbro substrates (Kennedy et al. 2000, 

p. 1; and Kennedy and Mertz 2003, p. 

1). 

2. Comment: One peer reviewer stated 

that the Ceanothus ophiochilus 

population in Subunit 1A near Vail 

Lake is important to the preservation of 

the genetic purity of this species and 

should not be excluded from critical 

habitat because the Western Riverside 

County Multiple Species Habitat 

Conservation Plan (MSHCP) does not 

adequately protect this population. The 

peer reviewer made the following points 

to the argument that this population is 

important and should be protected: 

a. In the proposed rule we wrote that 

Ceanothus ophiochilus ‘‘appears’’ to 

hybridize with C. crassifolius; however, 

the peer reviewer commented that C. 

ophiochilus ‘‘does’’ hybridize with C. 

crassifolius and that there are several 

specimens deposited at the herbarium of 

Rancho Santa Ana Botanic Garden 

which document the hybridization of 

these two species. 

b. The peer reviewer commented that 

both Ceanothus ophiochilus and C. 

crassifolius are members of the 

subgenus Cerastes. All members of this 

subgenus lack a burl and are obligate 

seeders. The peer reviewer states that 

because both of these species only 

regenerate from seeds following a fire 

and that the two species hybridize, the 

threat of hybridization is a threat to the 

survival of the species. 

c. The peer reviewer commented that 

the occurrences near Vail Lake and the 

occurrences in the Agua Tibia 

wilderness are affected differently by 

hybrids because Ceanothus crassifolius 

grows immediately adjacent to the C. 

ophiochilus in the Agua Tibia 

Wilderness and these two species are 

separated by 0.25 mi (0.4 km) in Vail 

Lake. 

d. The peer reviewer commented that 

due to soil disturbance from roads and 

fuel breaks within the populations of 

Ceanothus ophiochilus in the Agua 

Tibia Wilderness, hybrid plants are now 

more interspersed with the population. 

The greater amount of hybrid 

individuals may increase the relative 

likelihood of further introgressive 

hybridization within the new cohort of 

C. ophiochilus. This contrasts with the 

populations near Vail Lake where the 

natural distance to C. crassifolius 

populations is greater and there has not 

been disturbance within the population. 

These factors lead to the conclusion 

that the population at Vail Lake has a 

much better chance of keeping the pure 

form of C. ophiochilus intact and lower 

the risk caused by hybridization. 

Response: We agree with the peer 

reviewer’s comments on the potential 

problems associated with hybridization, 

and we have made the appropriate 

changes to this final rule to clarify that 

hybridization is a threat to this species 

(please see the ‘‘Primary Constituent 

Elements’’ section for Ceanothus 

ophiochilus). However, we disagree 

with the peer reviewer’s comment that 

Subunit 1A for C. ophiochilus should 

not be excluded from critical habitat 

because the Western Riverside County 

MSHCP does not adequately protect this 

population. The Western Riverside 

County MSHCP provides measures to 

benefit the conservation of C. 

ophiochilus by: protecting habitat from 

surface-disturbing activities; 

implementing specific management and 

monitoring practices to help ensure the 

conservation of C. ophiochilus in the 

MSHCP Conservation Area; maintaining 

the physical and ecological 

characteristics of occupied habitat; and 

conducting surveys and implementing 

other required procedures to ensure 

avoidance of impacts to at least 90 

percent of suitable habitat areas 

determined important to the long-term 

conservation of C. ophiochilus within 

the Criteria Area. As discussed in the 

proposed critical habitat rule, the 

exclusion of critical habitat does not 

dismiss or lessen the value that the Vail 

Lake population has to the overall 

conservation of this species. Rather, we 

have determined that the benefits of 

excluding Subunit 1A are greater than 

the benefits of including the subunit, 

and the exclusion of Subunit 1A will 

not result in the extinction of the 

species (please see the ‘‘Relationship of 

Critical Habitat to Habitat Conservation 

Plan Lands —Exclusions Under Section 

4(b)(2) of the Act’’ section of this final 

rule for a detailed discussion). 

3. Comment: A second peer reviewer 

commented that the hybridization 

between Ceanothus ophiochilus and C. 

crassifolius may result in the loss of 

homogeneous C. ophiochilus 

populations at some sites. This is 

especially true in those populations 

where the C. crassifolius significantly 

outnumbers C. ophiochilus or where the 

two species are in close contact. The 

mstockstill on PROD1PC66 with RULES2

54986 Federal Register / Vol. 72, No. 187 / Thursday, September 27, 2007 / Rules and Regulations 

reviewer further commented that 

management plans need to take this 

potential problem into consideration. 

Response: The information provided 

by this peer reviewer and the previous 

peer reviewer help to explain why 

hybridization threatens this species. We 

have made the appropriate changes to 

this final rule to clarify that 

hybridization is a threat to the species 

(please see ‘‘Primary Constituent 

Elements’’ section for Ceanothus 

ophiochilus and the ‘‘Special 

Management Considerations or 

Protection’’ section). We have based this 

critical habitat designation on the best 

scientific and commercial data 

available. Currently, we are unaware of 

any studies specifically addressing the 

extent to which these two species are 

hybridizing. We also do not have 

information on the reproductive 

characteristics of the hybrid plants in 

the wild. However, we agree that 

researching the issue of hybridization as 

it relates to C. ophiochilus will be 

important to the conservation of this 

species. 

4. Comment: One peer reviewer stated 

that Ceanothus ophiochilus will not 

survive in the long term if intentionally 

exposed to fire-suppression. The peer 

reviewer stated that this species is 

unable to reproduce vegetatively and 

requires fire to prepare seeds for 

germination and provide an open, 

mineral-rich soil free from competition 

among seedlings. The peer reviewer 

commented that plans for managing 

critical habitat need to take this natural 

process into consideration. 

Response: Designation of critical 

habitat does not necessarily require 

changes to existing management plans. 

However, we have incorporated this 

information as it relates to the potential 

impacts of fire-suppression into the 

‘‘Primary Constituent Elements’’ section 

for Ceanothus ophiochilus of this final 

rule, so it will be considered in any 

relevant future section 7 consultations. 

We will also encourage parties to 

consider the effects of fire-suppression 

when developing management plans 

covering areas supporting essential 

habitat for C. ophiochilus. 

5. Comment: One peer reviewer 

indicated that the seeds of 

Fremontodendron decumbens differ 

from the seeds of F. mexicanum. 

Fremontodendron decumbens seeds 

have an orange waxy protrusion called 

a caruncle. The caruncle attracts ants 

which in turn disperse the seeds. It has 

been reported that F. mexicanum does 

not have a caruncle. The peer reviewer 

commented that this should be verified 

through a formal study because the 

presence or absence of a caruncle has 

important implications in the 

regeneration ecology of seed dispersal in 

this species and, therefore, its continued 

persistence. 

Response: As required under the Act, 

we have based this critical habitat 

designation on the best scientific and 

commercial data available. We agree 

that investigating the seed dispersal 

mechanism for Fremontodendron 

mexicanum and the relationship with 

ants or other possible dispersers is 

important. We encourage further study 

and will continue to investigate 

dispersal mechanisms as we work 

towards the conservation of the species. 

Public Comments 

6. Comment: The County of San Diego 

commented that private lands in 

subunits 1A and 1B occupied by 

Fremontodendron mexicanum are 

entirely within a designated preserve 

area that will be protected and managed 

under the San Diego MSCP. The County 

provided specific information on the 

monitoring and management activities 

that will benefit this species and 

requested that lands covered by the 

MSCP be excluded from the final 

designation under section 4(b)(2) of the 

Act. 

Response: In the proposed rule, we 

requested comments on the 

appropriateness of excluding lands 

occupied by Fremontodendron 

mexicanum covered by the San Diego 

MSCP but did not propose these lands 

for exclusion. Based on comments we 

received during the public comment 

periods for the proposed rule, we have 

determined that even though F. 

mexicanum is not a covered species 

under the San Diego MSCP, private 

lands occupied by this species will be 

conserved under the San Diego MSCP 

through the Otay Ranch Phase 2 

Resource Management Plan. The Otay 

Ranch Phase 2 Resource Management 

Plan includes specific protection 

measures that will benefit F. 

mexicanum. In addition, these private 

lands will receive management for 

associated species that are covered 

under the MSCP that is consistent with 

the biological needs of F. mexicanum 

and preservation of its primary 

constituent elements. Based on the 

benefits of preserving and fostering our 

partnerships with these local 

jurisdictions and other non-Federal 

entities, and after considering the 

conservation benefits provided by the 

Otay Ranch Phase 2 Resource 

Management Plan under the MSCP, we 

have now determined that the benefits 

of excluding these lands from critical 

habitat outweigh the benefits of 

including these lands, and we have, 

therefore, excluded 133 ac (54 ha) of 

private lands proposed as critical 

habitat for this species from this final 

designation under section 4(b)(2) of the 

Act (see the ‘‘Relationship of Critical 

Habitat to Habitat Conservation Plan 

Lands—Exclusions Under Section 

4(b)(2) of the Act’’ section of this final 

rule for detailed discussion of the 

protections provided under the MSCP). 

7. Comment: The County indicated 

that the location of subunit 1A is not 

consistently described in the proposed 

rule. The County stated the proposed 

rule indicates that subunit 1A for 

Fremontodendron mexicanum is 

entirely on BLM land, but the map 

indicates that the subunit contains BLM 

land and private land. 

Response: The proposed rule (71 FR 

58340, October 3, 2006) indicates that 

subunit 1A for Fremontodendron 

mexicanum consists of both BLM and 

private land in the unit description on 

page 58350 and in Table 1 on the same 

page. 

8. Comment: One commenter 

requested that we discuss how the 

designation of critical habitat for 

Ceanothus ophiochilus may contribute 

to the fuel load and the fire hazard in 

the area around the designation. The 

commenter also requested that we 

identify range land plants species 

important to healthy rangelands that C. 

ophiochilus could overtake in its 

recovery after wildfire. 

Response: Ceanothus ophiochilus is a 

relatively uncommon component of 

chaparral and occurs in very limited 

areas. We do not believe that the 

conservation of this species will 

increase the fire danger in areas where 

critical habitat is designated. 

Management for this species would 

favor a natural fire regime, on the order 

of once every 20 to 50 years (Keeley 

2006, p. 367). Ceanothus ophiochilus is 

restricted to a limited soil type found in 

small patches on ridge-tops and northfacing slopes. This species is found in 

chaparral habitat and not areas that are 

historically range land. Following fire, 

C. ophiochilus repopulates limited areas 

in chaparral habitat and will not 

overtake rangelands. 

9. Comment: One commenter stated 

that the critical habitat designation 

should include all lands occupied by 

these two species. 

Response: Under section 3(5)(c) of the 

Act, critical habitat shall not include the 

entire geographical area which can be 

occupied by the species unless 

otherwise determined by the Secretary. 

The proposed designation of critical 

habitat for these two species included 

all of the areas known to be occupied by 

Ceanothus ophiochilus and 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 187 / Thursday, September 27, 2007 / Rules and Regulations 54987 

Fremontodendron mexicanum at the 

time of the proposed rule (71 FR 58340, 

October 3, 2006). After critical habitat 

was proposed for Fremontodendron 

mexicanum, approximately 500 F. 

mexicanum were documented at the 

location of an historical occurrence on 

Otay Mountain that was previously 

believed to be extirpated. This 

rediscovered occurrence is not within 

the area proposed as critical habitat. We 

recognize that designation of critical 

habitat may not include all of the 

habitat areas that may eventually be 

determined to be necessary for the 

recovery of the species. Therefore, 

critical habitat designations do not 

signal that habitat outside the 

designation is unimportant or may not 

be required for recovery. 

10. Comment: One commenter stated 

that we should include critical habitat 

Subunit 1A for Ceanothus ophiochilus 

because the Western Riverside County 

Multiple Species Habitat Conservation 

Plan (MSHCP) fails to provide special 

management to address altered fire 

regime and nonnative species. 

Response: Under the Western 

Riverside County MSHCP, an adaptive 

management program will be used to 

meet the conservation goals and 

objectives for this species. The species 

account for Ceanothus ophiochilus in 

the MSHCP documentation 

acknowledges that altered fire regimes 

and nonnative invasive species threaten 

this species. The Western Riverside 

County MSHCP provides a mechanism 

to address special management 

considerations and protections for the 

population of C. ophiochilus and its 

primary constituent elements identified 

for conservation under the MSHCP in 

Subunit 1A. After considering all 

relevant factors, including the 

conservation measures provided by the 

MSHCP, we have determined that the 

benefits of excluding lands covered by 

the MSHCP from critical habitat 

outweigh the benefits of inclusion (see 

‘‘Relationship of Critical Habitat to 

Habitat Conservation Plan Lands—

Exclusions Under Section 4(b)(2) of the 

Act’’ section for a detailed discussion of 

the MSHCP and further explanation of 

the bases for this conclusion). 

11. Comment: One commenter stated 

that both the Western Riverside County 

MSHCP and U.S. Forest Service’s 

(USFS) Land Management Plan (LMP) 

should be evaluated using the same 

standards when considering the 

exclusion of critical habitat Subunit 1A 

and 1B for Ceanothus ophiochilus. 

Response: We did evaluate lands 

covered by the Western Riverside 

County MSHCP and the USFS’s Land 

Management Plan for exclusion from the 

final designation using the same 

standards under section 4(b)(2) of the 

Act. In considering whether this plan 

provides adequate management or 

protection for the species for purposes 

of applying section 4(b)(2) of the Act, 

we evaluated the plan based on the 

following three criteria: (1) The plan is 

complete and provides the same or a 

higher level of protection from adverse 

modification or destruction than that 

provided through a consultation under 

section 7 of the Act; (2) there is a 

reasonable expectation that the 

conservation management strategies and 

actions will be implemented based on 

past practices, written guidance, or 

regulations; and (3) the plan provides 

conservation strategies and measures 

consistent with currently accepted 

principles of conservation biology. As 

discussed in the ‘‘Relationship of 

Critical Habitat to Habitat Conservation 

Plan Lands—Exclusions Under Section 

4(b)(2) of the Act’’ section, we believe 

that the Western Riverside County 

MSHCP fulfills these criteria, and we 

are excluding non-Federal lands 

covered by this plan that provide for the 

conservation of Ceanothus ophiochilus 

from the final designation of critical 

habitat pursuant to section 4(b)(2) of the 

Act. The USFS’s Land Management Plan 

contains general provisions for 

conservation of this species, and 

additional guidance documents are 

available that suggest specific 

management and conservation actions 

that should be considered. However, the 

LMP does not identify specific 

management measures to address the 

threat posed by short-interval fires and 

by competing nonnative species (Zedler 

1983, p. 815; Keeley 2006, p. 367; 

Merriam et al. 2007, p. vi, v, 48, 61). 

Therefore, after analyzing the LMP in 

light of the criteria identified above, we 

have determined that the LMP does not 

provide management for C. ophiochilus 

in a manner that provides the same or 

higher level of protection from adverse 

modification or destruction than that 

provided through a consultation under 

section 7(a)(2) of the Act. In addition, as 

discussed below in the ‘‘Exclusions 

under Section 4(b)(2) of the Act’’ section 

below, we have determined not to 

exclude these Federal lands from the 

final designation of critical habitat 

pursuant to section 4(b)(2) of the Act. 

12. Comment: One commenter stated 

that both subunits 1A and 1B for 

Fremontodendron mexicanum need to 

be retained in the final designation of 

critical habitat, despite the overlap of F. 

mexicanum with other species that are 

included in the Multiple Habitat 

Preserve Area/Pre-approved Mitigation 

Area of the MSCP for the City and 

County of San Diego. 

Response: Fremontodendron 

mexicanum is not covered by the San 

Diego MSCP; however, all of the known 

occurrences of this species occur within 

the preserve design for the MSCP (Pryor 

2007, p. 1–2). When the private lands 

where F. mexicanum occurs are 

conveyed into the MSCP preserve, they 

will be subject to adaptive management 

activities, consistent with the MSCP. 

Protections, management, and 

monitoring are described in the draft 

Otay Ranch Phase 2 Resource 

Management Plan (Otay Ranch 2002, p. 

141–144; Pryor 2007, p. 2). Therefore, 

we believe that private lands where this 

species and associated primary 

constituent elements are found will be 

managed in a way that will help to 

achieve the recovery of this species and 

have determined that the benefits of 

exclusion outweigh the benefits of 

inclusion as described in the 

‘‘Relationship of Critical Habitat to 

Habitat Conservation Plan Lands—

Exclusions Under Section 4(b)(2) of the 

Act’’ section. 

13. Comment: One commenter stated 

that we should use the Primary 

Constituent Elements (PCEs) to model 

suitable habitat for these species and 

designate suitable unoccupied habitat 

for these species. The commenter stated 

that the Service should consider and 

evaluate the recovery benefits of critical 

habitat designation as part of our critical 

habitat designation. 

Response: When determining habitat 

essential for the conservation of these 

species, we used a set of specific criteria 

for each species (see ‘‘Criteria Used To 

Identify Critical Habitat’’ below for more 

detail). Based on the resulting areas that 

were identified using these criteria, we 

made the determination that additional, 

unoccupied areas were not essential for 

the conservation of either species. We 

believe the current distribution of 

known, occupied locations of both 

species will provide for the 

conservation and contribute to the 

recovery of these species. Additionally, 

both of these species occur in very 

limited areas. These species are 

endemic to a very narrow range, and we 

have determined that the best 

conservation strategy for these two 

species is to conserve them in the 

locations where they currently are 

found. Accordingly, when the best 

available scientific data does not 

demonstrate that the conservation needs 

of the species require additional areas, 

we will not designate critical habitat in 

areas outside the geographical area 

occupied by the species at the time of 

listing. 

mstockstill on PROD1PC66 with RULES2

54988 Federal Register / Vol. 72, No. 187 / Thursday, September 27, 2007 / Rules and Regulations 

When proposing and finalizing 

critical habitat designations, the Service 

does consider the recovery benefits to 

species. The identification of those 

lands that are essential for the 

conservation of the species and can, if 

managed, provide for the recovery of a 

species, is beneficial. The process of 

proposing and finalizing a critical 

habitat rule provides the Service with 

the opportunity to identify the species’

essential primary constituent elements 

and areas essential for the conservation 

of the species. The designation process 

includes peer review and public 

comment on the identified features and 

lands. This process is valuable to land 

owners and managers in developing 

conservation management plans for 

identified lands, as well as any other 

occupied or unoccupied suitable habitat 

that may not have been included in the 

Service’s determination of essential 

habitat. 

14. Comment: One commenter 

requested that we evaluate how an 

exclusion under 4(b)(2) of the Act will 

affect the recovery of the species in 

addition to whether or not the exclusion 

will lead to the extinction of the species. 

Response: We believe the designation 

of critical habitat promotes the recovery 

of species, and when proposing and 

finalizing critical habitat designations 

we do consider the recovery benefits to 

species. When considering an exclusion 

under section 4(b)(2) of the Act, the 

recovery benefits to the species from 

designating a particular area as critical 

habitat are fully considered when we 

determine whether the benefits of 

inclusion of such area are outweighed 

by the benefits of exclusion. 

If we determine that the benefits of 

excluding a particular area from critical 

habitat outweigh the benefits of 

including such area, and have 

determined that excluding the area from 

the final critical habitat designation is 

appropriate, we then evaluate whether 

that exclusion would result in the 

extinction of the species and provide 

clear explanation for this determination. 

If we have been considering an 

exclusion that we determine will result 

in the extinction of a species, consistent 

with the statutory requirements of 

Section 4(b)(2), we will not exclude the 

area from the critical habitat 

designation. Please see the 

‘‘Relationship of Critical Habitat to 

Habitat Conservation Plan Lands—

Exclusions Under Section 4(b)(2) of the 

Act’’ section of this final rule for a 

detailed discussion and our 

determinations that the exclusions in 

this final rule will not result in the 

extinction of Ceanothus ophiochilus or 

Fremontodendron mexicanum. Areas 

meeting the definition of critical habitat 

for both C. ophiochilus and F. 

mexicanum occur on private lands. The 

HCPs in Riverside County and San 

Diego County include these private 

lands and provide for the management 

and monitoring of these lands as they 

are conserved. These plans are believed 

to provide for long-term conservation of 

these lands that the designation of 

critical habitat would not provide 

(please see the ‘‘Relationship of Critical 

Habitat to Habitat Conservation Plan 

Lands—Exclusions Under Section 

4(b)(2) of the Act’’ section of this final 

rule for a detailed discussion). 

15. Comment: One comment stated 

that the individual supports all of the 

past and on-going conservation efforts 

that have taken place for these two 

species; however, these conservation 

efforts are not a substitute for critical 

habitat. The person commented that 

critical habitat complements the 

conservation goals of habitat 

conservation plans and, by designating 

critical habitat, the Service assures that 

the Federal Government meets its legal 

obligation to ensure the continued 

existence and recovery for Ceanothus 

ophiochilus and Fremontodendron 

mexicanum. 

Response: The process of designating 

critical habitat does complement the 

existing habitat conservation plans 

(HCPs). The proposed rule identifies 

areas that meet the definition of critical 

habitat. These areas are then analyzed 

based on existing land-use planning 

documents, such as HCPs. Based on this 

analysis, areas may be excluded from 

the final designation of critical habitat, 

if the benefits of exclusion outweigh the 

benefits of including them in the critical 

habitat designation and the exclusions 

will not result in the extinction of the 

species. This exclusion analysis 

considers all benefits, including 

recovery benefits, and through the 

analysis the Service meets all legal 

requirements for designation of critical 

habitat. 

16. Comment: One commenter 

expressed support for our exclusion of 

private lands within the Western 

Riverside County MSHCP; however, the 

commenter stated that all lands covered 

by the MSHCP, including the USFS 

lands, should be excluded from critical 

habitat. The commenter cited the 

Implementing Agreement for the 

MSHCP indicating the Service had 

agreed that ‘‘in the event that a critical 

habitat determination is made for any 

covered species adequately conserved 

* * * lands within the boundaries of 

the MSHCP will not be designated as 

critical habitat (Implementing 

Agreement for the Western Riverside 

County Multiple Species Habitat 

Conservation Plan, sec. 14.10 at p. 51).’’

Response: In the Biological Opinion 

for the MSHCP, the Service concluded 

that the proposed conservation strategy 

would adequately conserve Ceanothus 

ophiochilus and its primary constituent 

elements (Service 2004, p. 402–406). We 

believe that the conservation 

mechanisms in place under the HCP 

will adequately conserve the 

populations and primary constituent 

elements on private lands. Further, the 

benefits analysis provided herein under 

section 4(b)(2) of the Act determined 

that the benefits of excluding the 

specific lands from critical habitat 

outweigh the benefits of including them 

in critical habitat (see the ‘‘Exclusions 

under Section 4(b)(2) of the Act’’ section 

of this final rule for further details). 

Therefore, we have excluded private 

lands covered by the MSHCP. We 

appreciate the conservation work that 

the USFS is doing for C. ophiochilus; 

however, the USFS is not a signatory to 

the MSHCP permit and therefore is not 

bound by the requirements of the 

MSHCP. The phrase ‘‘lands within the 

boundaries of the MSHCP,’’ as used in 

the provision of the Implementing 

Agreement referenced by the 

commenter, refers to lands under the 

jurisdiction of the MSHCP permittees, 

and does not include federal lands that 

fall within the overall MSHCP 

boundaries. For the reasons stated in the 

above response to Comment 11, we have 

determined not to exclude the USFS 

lands. 

Comments From Other Federal Agencies 

17. Comment: The USFS commented 

that the proposed critical habitat 

contains the occurrences and habitat for 

Ceanothus ophiochilus on USFS land. 

They also highlighted that the proposed 

designation stated that the Cleveland 

National Forest (CNF) lands were 

proposed for designation because of 

impacts to ridge tops from grading 

associated with the creation of fuel 

breaks, impacts to the associated 

vegetation community from unnatural 

fire regimes, and nonnative species. 

While the USFS agreed that these 

threats could damage C. ophiochilus 

habitat, they indicated that their Land 

Management Plan (LMP) provides for 

the minimization and avoidance of 

impacts to endangered species. 

Specifically, they indicated that 

Standard 12 of their LMP states, ‘‘When 

occupied or suitable habitat for 

threatened, endangered, proposed, 

candidate or sensitive species is present 

on an ongoing or proposed project site, 

consider species guidance documents to 

develop project-specific design criteria.’’

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 187 / Thursday, September 27, 2007 / Rules and Regulations 54989 

Response: We acknowledge the efforts 

the USFS has made towards the 

conservation of the Ceanothus 

ophiochilus and acknowledge that the 

LMP contains general provisions for 

conservation of this species. However, 

in considering whether the plan 

provides adequate management or 

protection for the species for purposes 

of applying section 4(b)(2) of the Act, 

we evaluated the plan based on the 

following three criteria: (1) The plan is 

complete and provides the same or a 

higher level of protection from adverse 

modification or destruction than that 

provided through a consultation under 

section 7 of the Act; (2) there is a 

reasonable expectation that the 

conservation management strategies and 

actions will be implemented based on 

past practices, written guidance, or 

regulations; and (3) the plan provides 

conservation strategies and measures 

consistent with currently accepted 

principles of conservation biology. The 

LMP does not identify specific 

management measures to address the 

threat posed by short-interval fires and 

by competing nonnative species (Keeley 

2006, p. 367; Merriam et al. 2007, p. vi, 

v, 48, 61). Because the USFS does not 

have a management plan specific to C. 

ophiochilus that provides the same or 

better level of protection from adverse 

modification or destruction than that 

provided through a consultation under 

section 7(a)(2) of the Act, we have 

determined that exclusion of these lands 

from the final designation of critical 

habitat pursuant to section 4(b)(2) of the 

Act is not appropriate for these Federal 

lands. 

18. Comment: The USFS commented 

that like HCPs, the USFS LMPs are 

designed to ensure the long-term 

survival of covered species in the plan 

area and designed to protect, restore, 

and enhance the value of USFS lands as 

habitat for listed species. They indicated 

that their LMP provides comparable 

conservation measures for Ceanothus 

ophiochilus and its primary constituent 

elements as the Western Riverside 

County MSHCP, and therefore should be 

excluded from critical habitat under 

section 4(b)(2) of the Act. 

Response: Based on a review of the 

USFS LMP, we do not believe that the 

LMP provides conservation measures 

for Ceanothus ophiochilus comparable 

to those provided in the Western 

Riverside County MSHCP. During the 

development of this final designation, 

we evaluated lands covered by the 

Western Riverside County MSHCP, the 

USFS’s LMP, and other relevant 

conservation plans for exclusion using 

the same standards under section 4(b)(2) 

of the Act. Please see our response to 

Comment number 11. 

19. Comment: The USFS commented 

that current laws, regulations, and 

policies, and land management 

practices on the CNF are adequate to 

provide for the conservation of 

Ceanothus ophiochilus and its habitat. 

They further state that designation of 

critical habitat on CNF lands would not 

provide any additional benefit to the 

conservation of C. ophiochilus, or its 

habitat, and that designation would 

unnecessarily add to their analysis 

burden by requiring the USFS to make 

a determination of effect regarding 

critical habitat when consulting under 

section 7(a)(2) of the Act. 

Response: Although the comment 

letter from the USFS does not explicitly 

request that the lands proposed for 

designation be excluded from final 

critical habitat, based on their 

comments we did consider their lands 

for exclusion. We concluded that 

despite the LMP and other regulations 

that exist, which require the USFS to 

manage Ceanothus ophiochilus and its 

habitat, the benefits of including this 

area in critical habitat outweigh the 

benefits of excluding this area from the 

designation of critical habitat (please see 

the ‘‘Unit Description’’ section for 

detailed discussion on the exclusion of 

the USFS lands in this critical habitat 

determination). 

Comments Related To the Draft 

Economic Analysis 

20. Comment: One commenter stated 

that the DEA should consider potential 

economic impacts to all occupied and 

unoccupied but suitable habitat, rather 

than just the areas included in the draft 

rule. 

Response: In a critical habitat 

designation, section 4(b)(2) of the Act 

requires that we consider the economic 

impact of specifying any particular area 

as critical habitat. Therefore, we prepare 

an economic analysis to identify the 

economic impact of designating areas 

proposed as critical habitat (including 

any areas proposed for exclusion under 

section 4(b)(2) of the Act). The 

economic analysis focuses on activities 

within or affecting these areas. Potential 

economic impacts to areas supporting 

occupied and suitable habitat that are 

outside the boundaries of proposed 

critical habitat are not relevant to the 

required analysis under section 4(b)(2) 

of the Act. 

21. Comment: One commenter stated 

that the DEA overestimates costs 

associated with conserving both 

Ceanothus ophiochilus and 

Fremontodendron mexicanum, because 

it includes economic impacts 

attributable to listing under the Act. The 

comment further states that the DEA 

inaccurately attributes all of the costs to 

critical habitat designation and confuses 

the economic costs by including costs of 

conservation efforts for the species (not 

just critical habitat) with conservation of 

the proposed critical habitat. 

Response: The economic analysis 

estimates the total cost of species 

conservation activities without 

subtracting the impact of pre-existing 

baseline regulations (i.e., the cost 

estimates are fully co-extensive). In 

2001, the U.S. 10th Circuit Court of 

Appeals instructed the Service to 

conduct a full analysis of all of the 

economic impacts of proposed critical 

habitat designation, regardless of 

whether those impacts are attributable 

co-extensively to other causes (New 

Mexico Cattle Growers Ass’n v. USFWS, 

248 F.3d 1277 (10th Cir. 2001)). The 

economic analysis for Ceanothus 

ophiochilus and Fremontodendron 

mexicanum is consistent with this 

direction from the U.S. 10th Circuit 

Court of Appeals. The analysis 

identifies those economic activities 

believed most likely to threaten the 

species and their habitat and, where 

possible, quantifies the economic 

impact to avoid, mitigate, or compensate 

for such threats within the boundaries 

of the critical habitat designation. We 

acknowledge that some of these costs 

will likely be incurred regardless of 

whether critical habitat is designated. 

However, due to the difficulty in 

making a credible distinction between 

listing and critical habitat effects within 

critical habitat boundaries, the analysis 

considered all future conservationrelated impacts to be coextensive with 

the designation. We have not excluded 

any areas from the final critical habitat 

designation based on economic impacts 

under section 4(b)(2) of the Act. 

22. Comment: One comment states 

that the DEA fails to evaluate any 

benefits of conserving a species that is 

threatened by extinction. The comment 

further notes that in addition to the 

dollar value of both Ceanothus 

ophiochilus and Fremontodendron 

mexicanum, there are many other 

values, destined to grow with our 

knowledge of the species in science, 

medicine, and aesthetics and in ways 

still unforeseen. The same commenter 

requests that at least some of these 

values be quantified and estimated in 

the final economic analysis. 

Response: Section 4(b)(2) of the Act 

requires the Secretary to designate 

critical habitat based on the best 

scientific data available after taking into 

consideration the economic impact, 

impact on national security, and any 

mstockstill on PROD1PC66 with RULES2

54990 Federal Register / Vol. 72, No. 187 / Thursday, September 27, 2007 / Rules and Regulations 

other relevant impact, of specifying any 

particular area as critical habitat. The 

Service’s approach for estimating 

economic impacts includes both 

economic efficiency and distributional 

effects. The measurement of economic 

efficiency is based on the concept of 

opportunity costs, which reflect the 

value of goods and services foregone in 

order to comply with the effects of the 

designation (e.g., lost economic 

opportunity associated with restrictions 

on land use). Where data are available, 

the economic analyses do attempt to 

measure the net economic impact. 

However, no data was found that would 

allow for the measurement of such an 

impact, nor was such information 

submitted during the public comment 

period. 

Most of the other benefit categories 

submitted by the commenter reflect 

broader social values, which are not the 

same as economic impacts. While the 

Secretary must consider economic and 

other relevant impacts as part of the 

final decision-making process under 

section 4(b)(2) of the Act, the Act 

explicitly states that it is the 

government’s policy to conserve all 

threatened and endangered species and 

the ecosystems upon which they 

depend. Thus, we believe that explicit 

consideration of broader social values 

for the species and their habitat, beyond 

the more traditionally defined economic 

impacts, is not necessary as Congress 

has already clarified the social 

importance. 

We note, as a practical matter, it is 

difficult to develop credible estimates of 

such values, as they are not readily 

observed through typical market 

transactions and can only be inferred 

through advanced, tailor-made studies 

that are time consuming and expensive 

to conduct. We lacked both the budget 

and time needed to conduct such 

research before meeting our courtordered final rule deadline. In summary, 

we believe that Congress has placed 

significant value on conserving any and 

all threatened and endangered species 

and the habitats upon which they 

depend, and the critical habitat 

designation process under section 4 of 

the Act incorporates these values. Thus, 

although we limit the scope of the 

economic analysis to economic impacts 

(both positive and negative), when we 

consider whether it is appropriate to 

exclude particular areas from critical 

habitat under section 4(b)(2) of the Act, 

we consider not just economic impacts, 

but all relevant impacts. In doing so, 

consistent with the value Congress has 

placed on species preservation, 

conservation benefits for the species at 

issue derived from the designation of 

critical habitat are afforded appropriate 

weight in the balancing analysis under 

section 4(b)(2). 

23. Comment: One commenter 

requested that we identify the potential 

cost of loss of private property and 

habitat due to wildfires that may occur 

as a result of the designation of critical 

habitat. 

Response: Ceanothus ophiochilus and 

Fremontodendron mexicanum are 

adapted to a natural fire regime with 

wildfire intervals of approximately 20 to 

50 years. For example, C. ophiochilus 

reproduces after fire from seed. As a 

result, fire suppression activities can 

considerably limit the species’ ability to 

reproduce because the seeds need fire to 

sprout. However, short-interval fires can 

also be detrimental to the species by 

preventing plants from reaching 

reproductive maturity and facilitating 

the establishment of non-native grasses 

that compete for limited space and 

resources. Federal agencies indicated 

that they would need to develop fire 

management plans for each species. 

Adoption of species-specific fire 

management plans, which are 

themselves subject to consultation 

pursuant to Section 7 of the Act, will 

allow Federal land managers to 

maintain the natural fire regimes 

required by each species. Fire 

management plans take neighboring 

properties into account such that 

application of prescribed burns or 

management of wildfires should occur 

in such a manner that would not 

increase the risk to surrounding 

properties and development. As such, 

we do not believe it is appropriate to 

evaluate the cost of the potential loss of 

private property due to wildfire as a part 

of this designation. 

24. Comment: One commenter stated 

that the co-extensive costs projected in 

the draft economic analysis are 

unacceptable. 

Response: In 2001, the U.S. 10th 

Circuit Court of Appeals instructed the 

Service to conduct a full analysis of all 

of the economic impacts of proposed 

critical habitat designation, regardless of 

whether those impacts are attributable 

co-extensively to other causes (New 

Mexico Cattle Growers Ass’n v. USFWS, 

248 F.3d 1277 (10th Cir. 2001)). The 

economic analysis for Ceanothus 

ophiochilus and Fremontodendron 

mexicanum is consistent with this 

direction from the U.S. 10th Circuit 

Court of Appeals. See response to 

comment 21. 

Summary of Changes From Proposed 

Rule 

In preparing the final critical habitat 

designation for Ceanothus ophiochilus 

and Fremontodendron mexicanum, we 

reviewed and considered public and 

peer review comments on the proposed 

designation of critical habitat and the 

DEA. As a result of comments received 

on the proposed rule and the DEA, and 

a reevaluation of the proposed critical 

habitat boundaries, we made the 

changes identified below to our 

proposed designation. 

In the proposed rule, we requested 

comments on the appropriateness of 

excluding lands occupied by 

Fremontodendron mexicanum covered 

by the San Diego MSCP but did not 

propose these lands for exclusion. Based 

on information we received during the 

public comment periods for the 

proposed rule, we have determined that 

even though F. mexicanum is not a 

covered species under the San Diego 

MSCP, private lands occupied by this 

species will be conserved under the San 

Diego MSCP through the Otay Ranch 

Phase 2 Resource Management Plan. 

The management provided by the MSCP 

for other covered species will also 

benefit the recovery of F. mexicanum 

(see ‘‘Relationship of Critical Habitat to 

Habitat Conservation Plan Lands—

Exclusions Under Section 4(b)(2) of the 

Act’’ section for further discussion). We 

reanalyzed the lands covered by the 

MSCP for exclusion and determined 

that the benefits of excluding these 

lands from critical habitat outweighs the 

benefits of including them in the 

designation. Therefore, we have 

excluded 133 ac (54 ha) of private lands 

proposed as critical habitat for this 

species from this final designation 

under section 4(b)(2) of the Act (see the 

‘‘Exclusions under Section 4(b)(2) of the 

Act’’ section of this final rule for further 

details). 

Critical Habitat 

Critical habitat is defined in section 3 

of the Act as (i) The specific areas 

within the geographical area occupied 

by a species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features (I) Essential to the conservation 

of the species and (II) that may require 

special management considerations or 

protection; and (ii) specific areas 

outside the geographical area occupied 

by a species at the time it is listed, upon 

a determination that such areas are 

essential for the conservation of the 

species. Conservation, as defined under 

section 3 of the Act, means to use and 

the use of all methods and procedures 

that are necessary to bring any 

endangered species or threatened 

species to the point at which the 

measures provided under the Act are no 

longer necessary. Such methods and 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 187 / Thursday, September 27, 2007 / Rules and Regulations 54991 

procedures include, but are not limited 

to, all activities associated with 

scientific resources management such as 

research, census, law enforcement, 

habitat acquisition and maintenance, 

propagation, live trapping, and 

transplantation, and, in the 

extraordinary case where population 

pressures within a given ecosystem 

cannot be otherwise relieved, may 

include regulated taking. 

Critical habitat receives protection 

under section 7 of the Act through the 

prohibition against destruction or 

adverse modification of critical habitat 

with regard to actions carried out, 

funded, or authorized by a Federal 

agency. Section 7(a)(2) of the Act 

requires consultation on Federal actions 

that may affect critical habitat. The 

designation of critical habitat does not 

affect land ownership or establish a 

refuge, wilderness, reserve, preserve, or 

other conservation area. Such 

designation does not allow government 

or public access to private lands. 

Section 7(a)(2) of the Act is a purely 

protective measure and does not require 

implementation of restoration, recovery, 

or enhancement measures, nor does it 

apply to private actions for which there 

is no involved Federal action. 

To be included in a critical habitat 

designation, habitat within the 

geographical area occupied by the 

species must first have features that are 

essential to the conservation of the 

species. Critical habitat designations 

identify, to the extent known using the 

best scientific data available, habitat 

areas that provide essential life cycle 

needs of the species (areas on which are 

found the primary constituent elements, 

as defined at 50 CFR 424.12(b)). 

Habitat occupied at the time of listing 

may be included in critical habitat only 

if the essential features thereon may 

require special management 

considerations or protection. 

Furthermore, when the best available 

scientific data do not demonstrate that 

the conservation needs of the species 

require additional areas, we cannot 

designate critical habitat in areas 

outside the geographical area occupied 

by the species at the time of listing. 

However, an area currently occupied by 

the species but not occupied at the time 

of listing, will likely be essential to the 

conservation of the species and, 

therefore, may be included in the 

critical habitat designation. 

The Service’s Policy on Information 

Standards Under the Endangered 

Species Act, published in the Federal 

Register on July 1, 1994 (59 FR 34271), 

and Section 515 of the Treasury and 

General Government Appropriations 

Act for Fiscal Year 2001 (Pub. L. 106–

554; H.R. 5658) and the associated 

Information Quality Guidelines issued 

by the Service, provide criteria, 

establish procedures, and provide 

guidance to ensure that decisions made 

by the Service represent the best 

scientific data available. They require 

Service biologists, to the extent 

consistent with the Act and with the use 

of the best scientific data available, to 

use primary and original sources of 

information as the basis for 

recommendations to designate critical 

habitat. When determining which areas 

are critical habitat, a primary source of 

information is generally the listing 

package for the species. Additional 

information sources may include the 

recovery plan for the species, articles in 

peer-reviewed journals, conservation 

plans developed by States and counties, 

scientific status surveys and studies, 

biological assessments, or other 

unpublished materials and expert 

opinion or personal knowledge. All 

information is used in accordance with 

the provisions of Section 515 of the 

Treasury and General Government 

Appropriations Act for Fiscal Year 2001 

(Pub. L. 106–554; H.R. 5658) and the 

associated Information Quality 

Guidelines issued by the Service. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific and commercial data 

available. Habitat is often dynamic, and 

species may move from one area to 

another over time. Furthermore, we 

recognize that designation of critical 

habitat may not include all of the 

habitat areas that may eventually be 

determined to be necessary for the 

recovery of the species. For these 

reasons, critical habitat designations do 

not signal that habitat outside the 

designation is unimportant or may not 

be required for recovery. 

Areas that support populations of 

Ceanothus ophiochilus and 

Fremontodendron mexicanum, but are 

outside their respective critical habitat 

designations, will continue to be subject 

to conservation actions implemented 

under section 7(a)(1) of the Act and to 

the regulatory protections afforded by 

the section 7(a)(2) jeopardy standard, as 

determined on the basis of the best 

available information at the time of the 

action. Federally funded or permitted 

projects affecting listed species outside 

their designated critical habitat areas 

may still result in jeopardy findings in 

some cases. Similarly, critical habitat 

designations made on the basis of the 

best available information at the time of 

designation will not control the 

direction and substance of future 

recovery plans, habitat conservation 

plans, or other species conservation 

planning efforts if new information 

available to these planning efforts calls 

for a different outcome. 

Primary Constituent Elements (PCEs) 

In accordance with section 3(5)(A)(i) 

of the Act and regulations at 50 CFR 

424.12, in determining which areas to 

designate as critical habitat within areas 

occupied by the species at time of 

listing, we consider those physical or 

biological features (primary constituent 

elements (PCEs)) that are essential to the 

conservation of the species, and may 

require special management 

considerations or protection. These 

include, but are not limited to space for 

individual and population growth and 

for normal behavior; food, water, air, 

light, minerals, or other nutritional or 

physiological requirements; cover or 

shelter; sites for breeding, reproduction, 

and rearing (or development) of 

offspring; and habitats that are protected 

from disturbance or are representative of 

the historic geographical and ecological 

distributions of a species. 

Ceanothus ophiochilus 

The specific primary constituent 

elements required for Ceanothus 

ophiochilus are derived from the 

biological and physical needs of the 

species as described in the final listing 

rule (63 FR 54956, October 13, 1998), 

the proposed critical habitat rule (71 FR 

58340, October 3, 2006), and 

information contained in this final rule. 

Space for Growth and Reproduction 

Ceanothus ophiochilus is restricted to 

ridgetops and north to northeast facing 

slopes in chamise chaparral (PCE 1). It 

occurs on soils formed from 

metavolcanic and ultra-basic parent 

materials or deeply weathered gabbro 

substrates, all of which are phosphorus 

deficient and thus considered to be 

nutrient-poor (PCE 2) (Boyd et al. 1991, 

pp. 31, 37–38; Kennedy et al. 2000, p. 

1; and Kennedy and Mertz 2003, p. 1). 

These soils are similar to serpentine 

soils, which are well known for the high 

number of associated rare and endemic 

plants (Kruckeberg 1984, pp.3–5, p. 34). 

The high number of rare and endemic 

plants that grow on nutrient-poor soils, 

sometimes termed as harsh soils, is due 

to the difficulty that common plants 

have with growing in these conditions. 

In turn, when plants become established 

on such soils, they remain genetically 

isolated from close relatives that are not 

able to thrive on the nutrient-poor soils. 

In this way, these nutrient-poor soils 

may help the species maintain 

reproductive isolation (Boyd et al. 1991, 

p. 37–38). This is important because C. 

ophiochilus hybridizes with the locally 

mstockstill on PROD1PC66 with RULES2

54992 Federal Register / Vol. 72, No. 187 / Thursday, September 27, 2007 / Rules and Regulations 

common C. crassifolius in places where 

the two species grow in close proximity 

(Boyd et al. 1991, p. 37–38). Hybrids are 

generally found on the margins of C. 

ophiochilus occurrences, where the soil 

changes from the harsh metavolcanic 

and gabbro soils that C. ophiochilus is 

typically found on to the milder 

sedimentary soils that support species 

such as C. crassifolius (Boyd et al. 1991, 

p. 37–38). Hybridization is a common 

natural phenomenon among the species 

of Ceanothus genus (Schmidt 1993, p. 

935; Fross and Wilken 2006, pp. 131–

149), and metavolcanic and gabbro soils 

are important for growth and 

reproduction of C. ophiochilus, as well 

as for space and separation from C. 

crassifolius, a species with which C. 

ophiochilus is known to hybridize. 

Soils where Ceanothus ophiochilus is 

found in the Agua Tibia Wilderness are 

mapped as Ramona, Cienaba, and Vista 

series (USDA 1973, pp. 38–40, 70–71, 

82–83), but appear to be Las Posas series 

based on field review and soil samples 

(USFS 1998a). Soils where C. 

ophiochilus is found at Vail Lake are 

mapped as Cajalco series (USDA 1971, 

p. 21). 

Ceanothus ophiochilus is found in 

chamise chaparral or mixed chamiseceanothus-manzanita chaparral at 

elevations of 2,000 feet (ft) to 3,000 ft 

(610 meters (m) to 914 m) (California 

Department of Fish and Game 2000; 

California Natural Diversity Database 

(CNDDB) 2005) with the following 

associated species: Adenostoma 

fasciculatum, A. sparsifolium, Quercus 

berberidifolia, C. crassifolius, 

Arctostaphylos spp. Salvia clevelandii, 

and Eriodictyon crassifolium (PCE 3) 

(Boyd and Banks 1995, p. 15). Within 

chaparral of southern Riverside County, 

these associated species are much more 

common than C. ophiochilus. 

We have little information about the 

pollinators or reproductive biology of 

this species. This species is in the 

subgenus Cerastes, and, like all 

members of this subgenus, it is an 

obligate seeding species and does not 

have a burl (an underground mass from 

which the species can resprout 

following fire). Therefore, this species 

requires fire to establish new seedlings. 

However, if fire burns too frequently 

there is insufficient time for the plant to 

mature and establish a seed bank, 

placing populations at risk of 

extirpation (Keeley 2006, p. 367). The 

natural fire regime for the chaparral 

ecosystem is once every 20 to 50 years. 

Little information exists regarding the 

dispersal of this species. 

Primary Constituent Elements for 

Ceanothus ophiochilus 

Pursuant to the Act and its 

implementing regulations, we are 

required to identify the known physical 

or biological features (PCEs) within the 

geographical area occupied at the time 

of listing that are essential to the 

conservation of Ceanothus ophiochilus, 

which may require special management 

considerations or protection. All areas 

designated as critical habitat for C. 

ophiochilus are occupied, within the 

species’ historical geographic range, and 

contain sufficient PCEs to support at 

least one life history function. 

Based on our current knowledge of 

the life history, biology, and ecology of 

the species and the requirements of the 

habitat to sustain the essential life 

history functions of the species, we have 

determined the PCEs for Ceanothus 

ophiochilus are: 

(1) Flat to gently sloping north to 

northeast facing ridge tops with slopes 

in the range of 0 to 40 percent slope that 

provide the appropriate solar exposure 

for seedling establishment and growth; 

(2) Soils formed from metavolcanic 

and ultra-basic parent materials and 

deeply weathered gabbro or pyroxeniterich outcrops that provide nutrients and 

space for growth and reproduction. 

Specifically in the areas that Ceanothus 

ophiochilus is found, the soils are: 

(a) Ramona, Cienaba, Las Posas, and 

Vista series in the Agua Tibia 

Wilderness; and 

(b) Cajalco series in the vicinity of 

Vail Lake; and 

(3) Chamise chaparral or mixed 

chamise-ceanothus-arctostaphylos 

chaparral at elevations of 2,000 ft to 

3,000 ft (610 m to 914 m) that provide 

the appropriate canopy cover and 

elevation requirements for growth and 

reproduction. 

Fremontodendron mexicanum 

The specific primary constituent 

elements required for Fremontodendron 

mexicanum are derived from the 

biological and physical needs of the 

species as described in the final listing 

rule (63 FR 54956, October 13, 1998), 

the proposed critical habitat (71 FR 

58340, October 3, 2006), and 

information contained in this final rule. 

Space for Growth and Reproduction 

For its individual and population 

growth, Fremontodendron mexicanum 

needs alluvial terraces and benches 

adjacent to moderately sloped streams, 

creeks, and ephemeral drainages; 

stabilized northwest to northeast facing 

slopes associated with steep slopes (San 

Miguel-Exchequer soil complex has 

slopes in a range of 9 to 70 percent 

(USDA 1973, p. 76)) (PCE 1 and 2). 

Fremontodendron mexicanum occurs at 

elevations of 900 ft (274 m) to 3,000 ft 

(914 m) in the United States (63 FR 

54956); however, in Mexico, F. 

mexicanum occurs at an elevation of 

approximately 30 ft (9 m). Erosion from 

the steep slopes on Otay Mountain 

provides soils that form benches along 

the streambeds in Cedar Canyon and 

Little Cedar Canyon where F. 

mexicanum grows. Fremontodendron 

mexicanum also occupies some areas on 

slopes adjacent to the streambeds 

(Snapp-Cook 2006). In addition to 

plants growing near the streambed, 

plants observed on slopes adjacent to 

the streambeds were between 10 and 

500 ft (3 and 152 m) from the streambed. 

Although the role that the plants on 

sloped areas play in the dynamics of 

growth and reproduction for this species 

is unknown at this time, the high 

density of these plants suggests that 

they may play a significant role. 

Fremontodendron mexicanum is 

found growing within open stands of 

Cupressus forbesii (Tecate cypress), 

which often form a closed-cone 

coniferous forest, or is interspersed with 

mixed chaparral and Platanus racemosa 

(sycamore) (PCE 3) (63 FR 54956, 

October 13, 1998). In addition to cypress 

and sycamore, F. mexicanum is 

frequently associated with 

Dendromecon rigida ssp. rigida (tree 

poppy) and Malosma laurina (laurel 

sumac) (Snapp-Cook 2006). The canyon 

slopes around F. mexicanum are 

generally vegetated with chaparral and 

coastal sage scrub species (63 FR 54956, 

October 13, 1998). The mix of chaparral 

and riparian species may provide 

adequate shade and ground cover to 

exclude nonnative species, preventing 

such species from competing with F. 

mexicanum (Snapp-Cook 2006). 

Fremontodendron mexicanum is a 

facultative resprouter, meaning it is able 

to sprout from underground roots after 

a fire, flood, or other disturbance 

destroys the above-ground plant, and 

can also reproduce from seeds following 

a fire. This ability to repopulate an area 

using multiple strategies following a fire 

makes F. mexicanum more resilient to 

short-interval fire than obligate seeders 

(plants that can only reproduce from 

seed following a fire). For example an 

obligate seeder like Tecate cypress 

needs 6 to 30 years to produce sufficient 

numbers of seeds to reproduce 

following a fire, whereas, F. mexicanum 

has the ability to begin replacing its 

canopy with new basal sprouts 

relatively quickly following a fire 

(Keeley 1986). Other members of the 

Fremontodendron genus have a 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 187 / Thursday, September 27, 2007 / Rules and Regulations 54993 

structure on their seeds that attracts ants 

to disperse the seeds (Boyd 2001, p. 234; 

Keeley 1987, p. 443). This structure is 

a waxy orange protrusion growing at the 

base of each seed; it is called a 

‘‘caruncle’’ or an ‘‘elaiosome.’’ No 

observations have been made that 

indicate the presence of a caruncle on 

F. mexicanum; however, this should be 

investigated to learn if any similarities 

exist between the various species of 

Fremontodendron that would provide 

information about how F. mexicanum’s 

seed is dispersed. More research is 

needed into F. mexicanum’s 

reproduction and the role that 

pollination and seed production play in 

its survival. 

Hydrology and Soil Moisture 

Requirements for the Species 

Fremontodendron mexicanum has 

been cultivated since its discovery in 

the early 1900s, and the data available 

from the cultivation reports state that 

this species does well in soils that are 

well drained (Bornstein et al. 2005). 

Fremontodendron mexicanum grows on 

terraces and alluvial benches that are 

maintained by a natural hydrological 

cycle, which erodes the surrounding 

metavolcanic soils on the slopes and 

deposits those soils in the stream beds. 

The natural hydrological cycle also 

maintains open and semi-open spaces 

where F. mexicanum can establish 

itself. The natural flows may also 

provide transportation of seeds down 

stream to establish and augment 

downstream occurrences. 

Primary Constituent Elements for 

Fremontodendron mexicanum 

Pursuant to the Act and its 

implementing regulations, we are 

required to identify the known physical 

and biological features (PCEs) within 

the geographical area occupied at the 

time of listing that are essential to the 

conservation of Fremontodendron 

mexicanum, which may require special 

management considerations or 

protections. All areas designated as 

critical habitat for F. mexicanum are 

occupied, within the species’ historic 

geographic range, and contain sufficient 

PCEs to support at least one life history 

function. 

Based on our current knowledge of 

the life history, biology, and ecology of 

the species and the requirements of the 

habitat to sustain the essential life 

history functions of the species, we have 

determined the PCEs for 

Fremontodendron mexicanum are: 

(1) Alluvial terraces, benches, and 

associated slopes within 500 ft (152 m) 

of streams, creeks, and ephemeral 

drainages where water flows primarily 

after peak seasonal rains with a gradient 

ranging from 3 to 7 percent; and 

stabilized northwest to northeast facing 

slopes associated with steep (9 to 70 

percent) slopes that provide space for 

growth and reproduction. 

(2) Silty loam soils derived from 

metavolcanic and metabasic bedrock, 

mapped as San Miguel-Exchequer 

Association soil series that provide 

nutrients and substrate with adequate 

drainage to support seedling 

establishment and growth. 

(3) Open Cupressus forbesii and 

Platanus racemosa stands at elevations 

of 900 ft (274 m) to 3,000 ft (914 m) 

within a matrix of chaparral (such as 

Dendromecon rigida ssp. rigida and 

Malosma laurina) and riparian 

vegetation that provide adequate space 

for growth and reproduction. 

The designation of critical habitat for 

Ceanothus ophiochilus and 

Fremontodendron mexicanum is 

designed for the conservation of PCEs 

necessary to support the life history 

functions of each species and the areas 

containing the PCEs for each species. 

Units are designated based on sufficient 

PCEs being present to support each 

species’ life history functions. Each 

critical habitat unit contains all of the 

PCEs and supports multiple life 

processes for the species present in that 

unit. 

Special Management Considerations or 

Protection 

When designating critical habitat, we 

assess whether the areas determined to 

be occupied at the time of listing 

contain the primary constituent 

elements that may require special 

management considerations or 

protection. 

As stated in the final listing rule, 

threats to Ceanothus ophiochilus 

include habitat destruction, alteration, 

fragmentation, and degradation from 

urban development, as well as 

hybridization and fire at too frequent 

intervals to allow for sufficient seed 

bank replenishment in the soil (63 FR 

54956, October 13, 1998). Threats to 

Fremontodendron mexicanum as cited 

in the final listing rule include altered 

fire regimes, indirect impacts from 

nearby urbanization, and increased 

competition from nonnative species (63 

FR 54965, October 13, 1998). These 

threats could impact the PCEs 

determined to be essential for 

conservation of C. ophiochilus and F. 

mexicanum. 

Urban development near Ceanothus 

ophiochilus critical habitat units may 

alter the habitat characteristics required 

by the species. Land grading in and 

around occurrences of C. ophiochilus 

may affect the topography of the habitat 

and change the soil composition (PCEs 

1 and 2) rendering the habitat 

unsuitable for species growth and 

reproduction. Urban development may 

also encourage invasion by nonnative 

plant species, changing the vegetation 

community and/or directly impacting 

the vegetation community (PCE 3). In 

addition, urban development near this 

species may increase the frequency of 

fire. All identified private land is 

covered by the Western Riverside 

County MSHCP (MSHCP), and those 

lands have been excluded from the final 

designation (see ‘‘Relationship of 

Critical Habitat to Habitat Conservation 

Plan Lands—Exclusions Under Section 

4(b)(2) of the Act’’ section for a detailed 

discussion). No urban development is 

expected to directly impact the 

occurrences of C. ophiochilus on land 

owned by the USFS. Therefore, we do 

not believe threats from urban 

development would require special 

management considerations or 

protection of the PCEs on designated 

critical habitat for this species. 

The management of both fire 

frequency and the placement of fuel 

breaks is important for the conservation 

of Ceanothus ophiochilus, and special 

management considerations or 

protection of the PCEs for C. 

ophiochilus may be required on USFS 

lands to address potential threats posed 

by fire management activities. In the 

past, fuel breaks have been placed on 

the ridgelines (PCE 1) in C. ophiochilus 

habitat and have caused soil disturbance 

(PCE 2). Studies of fuel breaks in the 

Cleveland National Forest near the 

critical habitat designation have 

demonstrated an increase in the density 

of competing nonnative species 

(Merriam et al. 2007, p. 48), and it has 

been hypothesized that fuel breaks 

promote the introduction and spread of 

nonnative plants (Merriam et al. 2007, 

p. vi). These nonnative invasive plants 

alter local fuel conditions and change 

fire behavior and frequency (Merriam et 

al. 2007, p. 61). Ceanothus ophiochilus 

is very sensitive to short-interval fires, 

which may extirpate the species from a 

site entirely (Keeley 2006, p. 367). Soil 

disturbance, caused by the creation of 

fuel breaks, has also led to increased 

hybridization between Ceanothus 

ophiochilus and C. crassifolius. 

However, the degree to which 

hybridization is impacting C. 

ophiochilus and its habitat is not yet 

known. 

Fremontodendron mexicanum does 

not face direct threats from urban 

development; however, the PCEs for this 

species may require special 

management considerations or 

mstockstill on PROD1PC66 with RULES2

54994 Federal Register / Vol. 72, No. 187 / Thursday, September 27, 2007 / Rules and Regulations 

protection to address the threat from 

nonnative species. Nonnative plant 

species such as Tamarix spp. (salt 

cedar) and Cortaderia selloana (Pampas 

grass) could reduce the amount of space 

available to F. mexicanum (PCE 1 and 

2) and alter the vegetation community 

(PCE 3) if they become well established 

in either Cedar Canyon or Little Cedar 

Canyon. In addition, the PCEs for this 

species may require special 

management considerations or 

protection to address negative impacts 

related to fire fighting activities. Fire 

fighting activities may alter the alluvial 

terraces and benches that F. mexicanum 

grows on (PCE #1) if activities occur 

directly in the streambed adjacent to 

where F. mexicanum occurs. Special 

management may be needed to insure 

that fire fighting activities do not alter 

these areas or that measures are in place 

to restore damage to habitat after the 

activities occur. Likewise, future fuel 

breaks should be designed such that 

they do not create situations were extra 

run off is channeled into the canyons 

thus increasing the scouring that occurs 

in the creek bottoms and eroding the 

terraces and benches where F. 

mexicanum grows (PCE #1). 

In our unit descriptions for this 

designation, we further describe the 

threats requiring special management 

considerations or protection for each 

subunit. 

Criteria Used To Identify Critical 

Habitat 

As required by section 4(b)(1)(A) of 

the Act, we use the best scientific data 

available in determining areas that 

contain the features essential to the 

conservation of Ceanothus ophiochilus 

or Fremontodendron mexicanum. 

Recovery of Ceanothus ophiochilus and 

Fremontodendron mexicanum will 

require conservation of all populations 

identified in the proposed critical 

habitat rule. Both these species are 

narrow endemics with few populations 

and all populations may be important 

for redundancy and resilience of these 

two narrow-ranging species. 

To delineate the critical habitat for 

Ceanothus ophiochilus, we used the 

following criteria: (1) We identified all 

areas occupied by C. ophiochilus at the 

time of listing and/or currently 

occupied using the location data from 

Boyd and Banks (1995); (2) we created 

GIS (Geographic Information System) 

polygons, using these areas as guides, 

that included the occurrences and the 

ridge tops and north- and northeastfacing slopes immediately adjacent 

(within 500 ft (152 m)) to the 

occurrences of C. ophiochilus; and (3) 

we connected the polygons that were 

closer than 0.6 mi (1 km) to reduce 

fragmentation and ensure that the 

subunits captured populations and not 

individual occurrences. 

To delineate the critical habitat for 

Fremontodendron mexicanum, we used 

the following criteria: (1) We identified 

all areas, except one (see below), 

occupied by native occurrences (we did 

not include occurrences known to be of 

cultivated origin) of F. mexicanum at 

the time of listing and/or currently 

occupied using current data in the 

California Natural Diversity Database 

(CNDDB) (2005) and data obtained from 

field surveys (Snapp–Cook 2006); (2) we 

created GIS polygons, using these areas 

as guides, that included the alluvial 

terraces and benches occupied by F. 

mexicanum, and the associated slopes 

within 500 ft (152 m) of the areas 

occupied by F. mexicanum to insure 

that adequate space was delineated to 

encompass all existing F. mexicanum 

identified in the CNDDB and in field 

surveys conducted prior to the 

publication of the proposed critical 

habitat (71 FR 58340, October 3, 2006); 

and (3) we connected the polygons that 

were closer than 0.5 mi (0.8 km) from 

one another with a 660 ft (201 m) wide 

corridor to allow for connectivity 

between known occurrences for the 

transfer of pollen and seeds and to allow 

for natural riparian process to occur. 

The recently rediscovered occurrence of 

F. mexicanum on Otay Mountain 

(Snapp–Cook 2007, p. 1) discussed 

above in the ‘‘Distribution’’ section was 

not included in the delineation because 

the Service was not aware of its 

existence at the time of the proposed 

critical habitat rule, and the significance 

of this rediscovered population and its 

impact on designated critical habitat 

will need to be further evaluated by the 

Service. Appropriate action, if any, will 

be addressed in a future rulemaking. 

We analyzed all areas meeting the 

criteria used to identify critical habitat 

for both species to determine if any 

existing conservation or management 

plans exist that benefit either species 

and/or their respective PCEs. We 

determined that the Western Riverside 

County MSHCP benefits the 

conservation of Ceanothus ophiochilus 

and that the San Diego MSCP benefits 

the conservation of Fremontodendron 

mexicanum. We also determined that 

the benefits of excluding these areas 

outweighed the benefits of including 

these areas in the critical habitat 

designation. Therefore, approximately 

213 ac (87 ha) of private lands occupied 

by these species covered by the MSHCP 

or MSCP have been excluded under 

section 4(b)(2) of the Act in this final 

designation (please see ‘‘Exclusions 

under Section 4(b)(2) of the Act’’ for a 

detailed discussion). 

The MSHCP and MSCP documents 

were used as aids in determining areas 

that contain the features essential to the 

conservation of these two species. No 

areas outside the geographical area 

occupied at the time of listing by 

Ceanothus ophiochilus or 

Fremontodendron mexicanum were 

included in this final designation. 

When determining critical habitat 

boundaries within this final rule, we 

made every effort to avoid including 

developed areas such as buildings, 

paved areas, and other structures that 

lack PCEs for Ceanothus ophiochilus 

and Fremontodendron mexicanum. The 

scale of the maps prepared under the 

parameters for publication within the 

Code of Federal Regulations may not 

reflect the exclusion of such developed 

areas. Any such structures and the land 

under them inadvertently left inside 

critical habitat boundaries shown on the 

maps of this final rule have been 

excluded by text in the final rule and 

are not designated as critical habitat. 

Therefore, Federal actions limited to 

these areas would not trigger section 

7(a)(2) consultations, unless they may 

affect the species or primary constituent 

elements in adjacent critical habitat. 

A brief discussion of each area 

designated as critical habitat is provided 

in the unit descriptions below. 

Additional detailed documentation 

concerning the essential nature of these 

areas is contained in our supporting 

record for this rulemaking. 

Critical Habitat Designation 

We are designating approximately 203 

ac (82 ha) of federally-owned land as 

critical habitat for Ceanothus 

ophiochilus and approximately 228 ac 

(93 ha) of federally-owned land as 

critical habitat for Fremontodendron 

mexicanum. Table 1 provides the 

approximate area (ac/ha) determined to 

meet the definition of critical habitat for 

C. ophiochilus and F. mexicanum, the 

areas being excluded from final critical 

habitat designation under section 4(b)(2) 

of the Act (please see ‘‘Exclusions under 

Section 4(b)(2) of the Act’’ for a detailed 

discussion), and the areas being 

designated as critical habitat. 

Areas proposed as critical habitat for 

Ceanothus ophiochilus and 

Fremontodendron mexicanum, areas 

excluded from the final critical habitat 

designation under section 4(b)(2) of the 

Act, and areas designated as final 

critical habitat (acres (ac)/hectares (ha)) 

are shown in Table 1. 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 187 / Thursday, September 27, 2007 / Rules and Regulations 54995 

TABLE 1 

Critical habitat unit Land ownership Proposed critical habitat (71 FR 58340) 

Areas excluded under 

section 4(b)(2) of the 

Act 

Final critical 

habitat 

Ceanothus ophiochilus: 

1. Western Riverside County 

1A. Vail Lake ........................................ Private ......................... 76 ac (31 ha) .............. 76 ac (31 ha) .............. 0 ac (0 ha). 

1B. Agua Tibia Mountains .................... USFS* ......................... 203 ac (82 ha) ............ 0 ac (0 ha) .................. 203 ac (82 ha). 

Private ......................... 4 ac (2 ha) .................. 4 ac (2 ha) .................. 0 ac (0 ha). 

Total .............................................. ................................. 283 ac (115 ha) ........... 80 ac (33 ha) .............. 203 ac (82 ha). 

Fremontodendron mexicanum: 

1. Otay Mountain 

1A. Cedar Canyon ............................... BLM* ........................... 145 ac (59 ha) ............ 0 ac (0 ha) .................. 145 ac (59 ha). 

Private ......................... 114 ac (46 ha) ............ 114 ac (46 ha) ............ 0 ac (0 ha). 

1B. Little Cedar Canyon ....................... BLM* ........................... 83 ac (34 ha) .............. 0 ac (0 ha) .................. 83 ac (34 ha). 

Private ......................... 19 ac (8 ha) ................ 19 ac (8 ha) ................ 0 ac (0 ha). 

Total .............................................. ................................. 361 ac (147 ha) ........... 133 ac (54 ha) ............ 228 ac (93 ha). 

*USFS = U.S. Forest Service; BLM = Bureau of Land Management. 

Below we present brief descriptions of 

all units, and reasons why they meet the 

definition of critical habitat for 

Ceanothus ophiochilus and 

Fremontodendron mexicanum. 

Critical Habitat Designation for 

Ceanothus ophiochilus 

We are designating 203 ac (82 ha) of 

land as critical habitat for Ceanothus 

ophiochilus within a single unit. In the 

proposed critical habitat, this unit was 

divided into two subunits: Subunits 1A 

(Vail Lake) and 1B (Agua Tibia 

Mountains). We excluded all of subunit 

1A (76 ac (31 ha)) and a portion of 

subunit 1B (4 ac (2 ha)) under section 

4(b)(2) of the Act from the final 

designation of critical habitat for C. 

ophiochilus (please see the ‘‘Exclusions 

under Section 4(b)(2) of the Act’’

section). Therefore, only the lands in 

subunit 1B designated as final critical 

habitat are discussed below. 

Unit 1: Western Riverside County 

Unit 1 is located near Vail Lake in 

southern Riverside County, California. 

The area was occupied at the time of 

listing and contains all of the primary 

constituent elements essential to the 

conservation of the species that may 

require special management 

considerations or protection for 

Ceanothus ophiochilus. Below, we 

present a brief description of subunit 

1B, reasons why it meets the definition 

of critical habitat for C. ophiochilus, and 

our rationale for our final designation of 

critical habitat. 

Subunit 1B, Agua Tibia Mountains, 

Riverside County, California 

Subunit 1B (Agua Tibia Mountains) 

consists of 203 ac (82 ha) of land which 

is managed by the USFS. Subunit 1B 

contains two of the three CNDDB 

element occurrences (2 and 3) of 

Ceanothus ophiochilus, both known at 

the time of listing. The PCEs within this 

subunit may require special 

management considerations or 

protection to address the threats posed 

by short-interval fires, competing 

nonnative species, impacts to ridge tops 

(PCE 1) from grading associated with the 

creation of fuel breaks and impacts to 

the associated vegetation community 

(PCE 3) resulting from unnatural fire 

regimes. Subunit 1B is entirely within 

the Agua Tibia Wilderness of the 

Cleveland National Forest. 

Recently the USFS completed the 

LMP for the Four Southern California 

National Forests. Implementation of the 

LMP was analyzed by the Service to 

address potential impacts to Ceanothus 

ophiochilus. This analysis found that 

impacts to C. ophiochilus would be 

minor or negligible upon 

implementation of appropriate 

minimization measures due to the lowimpact nature of activities planned (e.g., 

dispersed recreation, non-motorized 

trails) (Service 2005 p. 129–132). 

However, the LMP does not identify 

specific management measures to 

address the threat posed by shortinterval fires and by competing 

nonnative species (Keeley 2006, p. 367; 

Merriam et al. 2007, p. vi, v, 48, 61). 

Because the USFS does not have a 

management plan specific to C. 

ophiochilus that provides the same or 

better level of protection from adverse 

modification or destruction than that 

provided through a consultation under 

section 7 of the Act, we have 

determined that exclusion of these lands 

from the final designation of critical 

habitat pursuant to section 4(b)(2) of the 

Act is not appropriate for these Federal 

lands (please see ‘‘Exclusions under 

Section 4(b)(2) of the Act’’ for a detailed 

discussion). Therefore, we are 

designating the USFS lands containing 

features essential to the conservation of 

C. ophiochilus as critical habitat for this 

species. 

Critical Habitat Designation for 

Fremontodendron mexicanum 

We are designating 228 ac (93 ha) of 

land as critical habitat for 

Fremontodendron mexicanum within 

one unit on Otay Mountain in southern 

San Diego County. This unit contains 

land managed by the Bureau of Land 

Management (BLM) within the Otay 

Mountain Wilderness Area (Otay 

Mountain Wilderness Act of 1999, Pub. 

L. 106–145, H.R. 15). This unit is further 

divided into two subunits. Subunit 1A 

(Cedar Canyon) and subunit 1B (Little 

Cedar Canyon) are each separate 

canyons on the northwest portion of 

Otay Mountain. All 133 ac (54 ha) of 

private land in Unit 1 proposed as 

critical habitat (71 FR 58340, October 3, 

2006) have been excluded from this 

final designation under section 4(b)(2) 

of the Act (please see ‘‘Exclusions under 

Section 4(b)(2) of the Act’’ for a detailed 

discussion). 

The critical habitat described below 

constitutes our best assessment of 

specific areas determined to be 

occupied at the time of listing, 

containing the primary constituent 

elements essential to the conservation of 

the species that may require special 

management considerations or 

protection for Fremontodendron 

mexicanum. 

Below, we present brief descriptions 

of the critical habitat subunits, reasons 

why they meet the definition of critical 

habitat for Fremontodendron 

mexicanum, and our rationale for their 

designation as critical habitat. 

mstockstill on PROD1PC66 with RULES2

54996 Federal Register / Vol. 72, No. 187 / Thursday, September 27, 2007 / Rules and Regulations 

Subunit 1A, Cedar Canyon, Otay 

Mountain, San Diego County, California 

Subunit 1A, Cedar Canyon, consists of 

145 ac (59 ha) of public land managed 

by the BLM. Subunit 1A contains 

CNDDB element occurrences 1, 13, and 

16. Land in this subunit is entirely 

within the Cedar Canyon Area of 

Critical Environmental Concern (ACEC) 

and a Research Natural Area (RNA) 

(BLM 1994, pp. 1, 19, 22). The BLM has 

not yet developed a specific 

management plan that outlines how the 

species will be managed in the Cedar 

Canyon ACEC and RNA. This subunit 

was occupied at the time of listing and 

contains all of the features essential to 

the conservation of the species. In 1998, 

when Fremontodendron mexicanum 

was federally listed, less than 100 

individual plants were documented 

from Cedar Canyon. This occurrence 

was thought to be the only location 

where F. mexicanum occurred naturally 

in the United States. Prior to the 2003 

Otay fire, the canyon was dominated by 

Cupressus forbesii (Tecate cypress) and 

riparian vegetation. In late 2005 and 

early 2006 when this canyon was 

surveyed for F. mexicanum by Service 

biologists, over 1,000 plants were found 

(Snapp-Cook 2006). This increase in the 

number of plants may be a result of the 

2003 Otay fire that burned Cedar 

Canyon as this species is a facultative 

resprouter (i.e., resprouts and produces 

seedlings after fire). The phenomenon of 

F. mexicanum resprouting following fire 

was also recorded following a 1979 fire 

in Cedar Canyon (CNDDB 2005 p. 1). 

The PCEs in this subunit may require 

special management considerations or 

protection to address negative impacts 

related to fire fighting activities (PCE 1) 

and negative impacts from the growth of 

nonnative species that may affect the 

space available for this species (PCE 1, 

2, and 3). 

Subunit 1B, Little Cedar Canyon, Otay 

Mountain, San Diego County, California 

Subunit 1B, Little Cedar Canyon, 

consists of 83 ac (34 ha) of public land 

managed by the BLM. Little Cedar 

Canyon is located approximately 1.9 mi 

(3 km) to the west of Cedar Canyon. The 

land in this subunit is part of the Otay 

Mountain Wilderness Area. This site 

was not discovered until after the 

species was listed; however, we believe 

that it was occupied at the time of 

listing. Thirty-one healthy plants were 

documented in Little Cedar Canyon in 

the summer of 2006, and evidence of 

mature seed was detected (Martin 2006). 

Although this occurrence is small when 

compared to the more than 1,000 plants 

observed in Cedar Canyon in early 2006 

(Snapp-Cook 2006), the Little Cedar 

Canyon occurrence will help to stabilize 

the existence of F. mexicanum in the 

United States and the discovery of F. 

mexicanum in Little Cedar Canyon 

almost doubles the amount of known 

occupied habitat for this species in the 

United States. The PCEs in this subunit 

may require special management 

considerations or protection to 

minimize impacts related to fire fighting 

activities and to the invasion of 

nonnative species that may affect the 

space available for this species (PCE 1, 

2, and 3). 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7 of the Act requires Federal 

agencies, including the Service, to 

ensure that actions they fund, authorize, 

or carry out are not likely to destroy or 

adversely modify critical habitat. 

Decisions by the 5th and 9th Circuit 

Court of Appeals have invalidated our 

definition of ‘‘adversely modify’’ (see 

Gifford Pinchot Task Force v. U.S. Fish 

and Wildlife Service, 378 F. 3d 1059 

(9th Cir. 2004) and Sierra Club v. U.S. 

Fish and Wildlife Service et al., 245 F.3d 

434, 442F (5th Cir. 2001)), and we do 

not rely on this regulatory definition 

when analyzing whether an action is 

likely to destroy or adversely modify 

critical habitat. Under the statutory 

provisions of the Act, we determine 

destruction or adverse modification on 

the basis of whether, with 

implementation of the proposed Federal 

action, the affected critical habitat 

would remain functional (or retain the 

current ability for the primary 

constituent elements to be functionally 

established) to serve its intended 

conservation role for the species. 

Section 7(a)(4) of the Act requires 

Federal agencies to confer with the 

Service on any action that is likely to 

jeopardize the continued existence of a 

species proposed for listing or result in 

destruction or adverse modification of 

proposed critical habitat. This is a 

procedural requirement only, as any 

conservation recommendations in a 

conference report or opinion are strictly 

advisory. However, once a species 

proposed for listing becomes listed, or 

proposed critical habitat is designated 

as final, the full prohibitions of section 

7(a)(2) apply to any discretionary 

Federal action. 

The primary utility of the conference 

procedures is to allow a Federal agency 

to maximize its opportunity to 

adequately consider species proposed 

for listing and proposed critical habitat 

and to avoid potential delays in 

implementing its proposed action, 

because of the section 7(a)(2) 

compliance process, if we list those 

species or designate critical habitat. We 

may conduct conferences either 

informally or formally. We typically use 

informal conferences as a means of 

providing advisory conservation 

recommendations to assist the agency in 

eliminating conflicts that the proposed 

action may cause. We typically use 

formal conferences when we or the 

Federal agency believes the proposed 

action is likely to jeopardize the 

continued existence of the species 

proposed for listing or adversely modify 

proposed critical habitat. 

We generally provide the results of an 

informal conference in a conference 

report, while we provide the results of 

a formal conference in a conference 

opinion. We typically prepare 

conference opinions on proposed 

species or critical habitat in accordance 

with procedures contained at 50 CFR 

402.14, as if the proposed species were 

already listed or the proposed critical 

habitat was already designated. We may 

adopt the conference opinion as the 

biological opinion when the species is 

listed or the critical habitat is 

designated, if no substantial new 

information or changes in the action 

alter the content of the opinion (see 50 

CFR 402.10(d)). 

If a species is listed or critical habitat 

is designated, section 7(a)(2) of the Act 

requires Federal agencies to ensure that 

activities they authorize, fund, or carry 

out are not likely to jeopardize the 

continued existence of the species or to 

destroy or adversely modify its critical 

habitat. If a Federal action may affect a 

listed species or its critical habitat, the 

responsible Federal agency (action 

agency) must enter into consultation 

with us. As a result of this consultation, 

we document compliance with the 

requirements of section 7(a)(2) through 

our issuance of: 

(1) A concurrence letter for Federal 

actions that may affect, but are not 

likely to adversely affect, listed species 

or critical habitat; or 

(2) A biological opinion for Federal 

actions that may affect, and are likely to 

adversely affect, listed species or critical 

habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

jeopardize the continued existence of a 

listed species or destroy or adversely 

modify critical habitat, we also provide 

reasonable and prudent alternatives to 

the project, if any are identifiable. We 

define ‘‘Reasonable and prudent 

alternatives’’ at 50 CFR 402.02 as 

alternative actions identified during 

consultation that: 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 187 / Thursday, September 27, 2007 / Rules and Regulations 54997 

• Can be implemented in a manner 

consistent with the intended purpose of 

the action, 

• Can be implemented consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction, 

• Are economically and 

technologically feasible, and 

• Would, in the Director’s opinion, 

avoid jeopardizing the continued 

existence of the listed species or 

destroying or adversely modifying 

critical habitat. 

Reasonable and prudent alternatives 

can vary from slight project 

modifications to extensive redesign or 

relocation of the project. Costs 

associated with implementing a 

reasonable and prudent alternative are 

similarly variable. 

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in instances where we have 

listed a new species or subsequently 

designated critical habitat that may be 

affected and the Federal agency has 

retained discretionary involvement or 

control over the action (or the agency’s 

discretionary involvement or control is 

authorized by law). Consequently, some 

Federal agencies may request 

reinitiation of consultation with us on 

actions for which formal consultation 

has been completed, if those actions 

may affect subsequently listed species 

or designated critical habitat. 

Federal activities that may affect 

Ceanothus ophiochilus or 

Fremontodendron mexicanum and/or 

their respective designated critical 

habitat require consultation under 

section 7 of the Act. Activities on State, 

Tribal, local, or private lands requiring 

a Federal permit (such as a permit from 

the U.S. Army Corps of Engineers under 

section 404 of the Clean Water Act (33 

U.S.C. 1251 et seq.) or a permit from us 

under section 10 of the Act from the 

Service or involving some other Federal 

action (such as funding from the Federal 

Highway Administration, Federal 

Aviation Administration, or the Federal 

Emergency Management Agency) are 

also subject to the section 7(a)(2) 

consultation process. Federal actions 

not affecting listed species or critical 

habitat, and actions on State, Tribal, 

local, or private lands that are not 

federally funded, authorized, or 

permitted, do not require section 7(a)(2) 

consultations. 

Application of the Adverse Modification 

Standard for Actions Involving Effects 

To the Critical Habitat 

The key factor related to the adverse 

modification determination is whether, 

with implementation of the proposed 

Federal action, the affected critical 

habitat would continue to serve its 

intended conservation role for the 

species, or would retain its current 

ability for the primary constituent 

elements to be functionally established. 

Activities that may destroy or adversely 

modify critical habitat are those that 

alter the PCEs to an extent that 

appreciably reduces the conservation 

value of critical habitat for Ceanothus 

ophiochilus or Fremontodendron 

mexicanum. Generally, the conservation 

role of Ceanothus ophiochilus or 

Fremontodendron mexicanum critical 

habitat units is to support viable core 

area populations. 

Section 4(b)(8) of the Act requires us 

to briefly evaluate and describe, in any 

proposed or final regulation that 

designates critical habitat, those 

activities involving a Federal action that 

may destroy or adversely modify such 

habitat, or that may be affected by such 

designation. 

Activities that, when carried out, 

funded, or authorized by a Federal 

agency, may affect critical habitat and, 

therefore, should result in consultation 

for Ceanothus ophiochilus or 

Fremontodendron mexicanum include, 

but are not limited to: 

(1) Actions that would directly impact 

Ceanothus ophiochilus and 

Fremontodendron mexicanum habitat 

and their primary constituent elements. 

Such activities could include, but are 

not limited to, road grading, streambed 

clearing, the creation of fuel breaks, and 

grading near these occurrences. These 

activities could change the physical and 

biological features of the habitat by 

affecting the topography of the site; 

removing soil and associated species; 

burying the appropriate soil for these 

species, making it unavailable for 

species growth and/or reproduction; or 

encouraging invasion by nonnative 

plant species; 

(2) Actions that would alter fire 

frequency in the areas occupied by 

Ceanothus ophiochilus. Such activities 

could include, but are not limited to, 

prescribed burns. These activities could 

alter the soil composition by increasing 

the nutrients in the soil; and 

(3) Actions that would increase the 

presence of nonnative species. Such 

activities could include, but are not 

limited to, seeding areas with nonnative 

species following a fire and 

inadvertently introducing nonnative 

seed via machinery, vehicles, and field 

gear. These activities could reduce the 

ability of these two species to grow and 

produce seed because the nonnative 

species may crowd out or otherwise 

compete with Ceanothus ophiochilus 

and Fremontodendron mexicanum. An 

increased presence of nonnative species 

could also change the fire regime as 

mentioned above or could alter the soil 

composition. 

We consider all of the units 

designated as critical habitat, as well as 

those that have been excluded, to 

contain features essential to the 

conservation of Ceanothus ophiochilus 

and Fremontodendron mexicanum. All 

subunits are within the geographic 

range of each species, respectively, and 

were occupied at the time of listing. All 

of the subunits are currently occupied. 

Federal agencies already consult with us 

on activities in areas occupied by these 

species, or if either species may be 

affected by the action, to ensure that 

their actions do not jeopardize the 

continued existence of C. ophiochilus 

and F. mexicanum. 

Application of Section 4(b)(2) of the Act 

Section 4(b)(2) of the Act states that 

the Secretary must designate and revise 

critical habitat on the basis of the best 

available scientific data after taking into 

consideration the economic impact, 

national security impact, and any other 

relevant impact, of specifying any 

particular area as critical habitat. The 

Secretary may exclude an area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. In making that determination, 

the legislative history is clear that the 

Secretary has broad discretion regarding 

which factor(s) to use and how much 

weight to give to any factor. 

Under section 4(b)(2) of the Act, in 

considering whether to exclude a 

particular area from the designation, we 

must identify the benefits of including 

the area in the designation, identify the 

benefits of excluding the area from the 

designation, and determine whether the 

benefits of exclusion outweigh the 

benefits of inclusion. If we consider 

excluding an area, then we must 

determine whether excluding the area 

would result in the extinction of the 

species. In the following sections, we 

address a number of general issues that 

are relevant to the exclusions we have 

made. In addition, the Service has 

conducted an economic analysis of the 

impacts of the proposed critical habitat 

designation and related factors, which 

was made available for public review 

and comment on April 5, 2007 (72 FR 

16756). Based on public comment 

which provided specific information 

about private lands being proposed for 

mstockstill on PROD1PC66 with RULES2

54998 Federal Register / Vol. 72, No. 187 / Thursday, September 27, 2007 / Rules and Regulations 

designation for Fremontodendron 

mexicanum, areas in addition to those 

proposed for exclusion in the proposed 

critical habitat rule have been excluded 

from critical habitat by the Secretary 

under the provisions of section 4(b)(2) 

of the Act. This is provided for in the 

Act and in our implementing 

regulations at 50 CFR 424.19. 

Benefits of Designating Critical Habitat 

Regulatory Benefits 

The consultation provisions under 

section 7(a)(2) of the Act constitute the 

regulatory benefits of critical habitat. As 

discussed above, Federal agencies must 

consult with us on actions that may 

affect critical habitat and must avoid 

destroying or adversely modifying 

critical habitat. Prior to our designation 

of critical habitat, Federal agencies must 

consult with us on actions that may 

affect a listed species and must refrain 

from undertaking actions that are likely 

to jeopardize the continued existence of 

such species. Thus the analysis of 

effects to critical habitat is a separate 

and different analysis from that of the 

effects to the species. Therefore, the 

difference in outcomes of these two 

analyses represents the regulatory 

benefit of critical habitat. For some 

species, and in some locations, the 

outcome of these analyses will be 

similar, because effects on habitat will 

often also result in effects on the 

species. However, the regulatory 

standard is different; the jeopardy 

analysis looks at the action’s impact on 

survival and recovery of the species, 

while the adverse modification analysis 

looks at the action’s effects on the 

designated habitat’s contribution to the 

species’ conservation. This will, in 

many instances, lead to different results, 

and different regulatory requirements. 

For 30 years prior to the Ninth 

Circuit’s decision in Gifford Pinchot, we 

combined the jeopardy standard with 

the standard for destruction or adverse 

modification of critical habitat when 

evaluating Federal actions that affected 

occupied critical habitat. However, the 

court of appeals ruled that the two 

standards are distinct and that adverse 

modification evaluations require 

consideration of impacts on species 

recovery. Thus, critical habitat 

designations may provide greater 

benefits to the recovery of a species than 

would listing alone. 

There are two limitations to the 

regulatory effect of critical habitat. First, 

a consultation is required only where 

there is a Federal nexus (an action 

authorized, funded, or carried out by 

any Federal agency). If there is no 

Federal nexus, the critical habitat 

designation of private lands itself does 

not restrict any actions that destroy or 

adversely modify critical habitat. 

Second, the designation only limits 

destruction or adverse modification. By 

its nature, the prohibition on adverse 

modification is designed to ensure no 

degradation of those areas containing 

the physical and biological features 

essential to the conservation of the 

species or of those unoccupied areas 

that are essential to the conservation of 

the species. Critical habitat designation 

alone, however, does not require 

property owners to undertake specific 

steps toward recovery of the species. 

Once an agency determines that 

consultation under section 7(a)(2) of the 

Act is necessary, the process may 

conclude informally when we concur in 

writing that the proposed Federal action 

is not likely to adversely affect critical 

habitat. However, if we determine 

through informal consultation that 

adverse impacts are likely to occur, then 

we would initiate formal consultation, 

which would conclude when we issue 

a biological opinion on whether the 

proposed Federal action is likely to 

result in destruction or adverse 

modification of critical habitat. 

For critical habitat, a biological 

opinion that concludes in a 

determination of no destruction or 

adverse modification may contain 

discretionary conservation 

recommendations to minimize adverse 

effects to primary constituent elements, 

but it would not suggest the 

implementation of any reasonable and 

prudent alternative. We suggest 

reasonable and prudent alternatives to 

the proposed Federal action only when 

our biological opinion results in an 

adverse modification conclusion. 

We believe that in many instances the 

regulatory benefit of critical habitat is 

low when compared to voluntary 

conservation efforts or management 

plans. The conservation achieved 

through implementing HCPs or other 

habitat management plans can be greater 

than what we achieve through multiple 

site-by-site, project-by-project, section 

7(a)(2) consultations involving 

consideration of critical habitat. 

Management plans may commit 

resources to implement long-term 

management and protection to 

particular habitat for at least one and 

possibly additional listed or sensitive 

species. Section 7(a)(2) consultations 

commit Federal agencies to preventing 

adverse modification of critical habitat 

caused by the particular project only, 

and not to providing conservation or 

long-term benefits to areas not affected 

by the proposed project. Thus, any HCP 

or management plan that considers 

enhancement or recovery as the 

management standard may often 

provide as much or more benefit than a 

consultation for critical habitat 

designation conducted under the 

standards required by the Ninth Circuit 

in the Gifford Pinchot decision. 

In providing the framework for the 

consultation process, the previous 

section applies to all the following 

discussions of benefits of inclusion or 

exclusion of critical habitat. 

Educational Benefits 

A benefit of including lands in critical 

habitat is that the designation of critical 

habitat serves to educate landowners, 

State and local governments, and the 

public regarding the potential 

conservation value of an area. This 

helps focus and promote conservation 

efforts by other parties by clearly 

delineating areas of high conservation 

value for Ceanothus ophiochilus and 

Fremontodendron mexicanum. In 

general, critical habitat designation 

always has educational benefits; 

however, in some cases, they may be 

redundant with other educational 

effects. For example, HCPs have had 

significant public input during their 

development, which may largely 

duplicate the educational benefit of a 

critical habitat designation. A second 

benefit of including lands in critical 

habitat is that the designation of critical 

habitat would inform State agencies and 

local governments about areas that 

could be conserved under State laws or 

local ordinances. 

Recovery Benefits 

The process of designating critical 

habitat as described in the Act requires 

that the Service identify those lands on 

which are found the physical or 

biological features essential to the 

conservation of the species and which 

may require special management 

considerations or protection. In 

identifying those lands, the Service 

must consider the recovery needs of the 

species, such that the habitat that is 

identified, if managed, could provide for 

the survival and recovery of the species. 

Furthermore, once critical habitat has 

been designated, Federal agencies must 

consult with the Service under section 

7(a)(2) of the Act to ensure that their 

actions will not adversely modify 

designated critical habitat or jeopardize 

the continued existence of the species. 

As noted in the Ninth Circuit’s Gifford 

Pinchot decision, the Court ruled that 

the jeopardy and adverse modification 

standards are distinct, and that adverse 

modification evaluations require 

consideration of impacts to the recovery 

of species. Thus, through the section 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 187 / Thursday, September 27, 2007 / Rules and Regulations 54999 

7(a)(2) consultation process, critical 

habitat designations provide recovery 

benefits to species by ensuring that 

Federal actions will not destroy or 

adversely modify designated critical 

habitat. 

It is beneficial to identify those areas 

that are necessary for the conservation 

of the species and that, if managed 

appropriately, would further recovery 

measures for the species. The process of 

proposing and finalizing a critical 

habitat rule provides the Service with 

the opportunity to identify the physical 

or biological features essential for 

conservation of the species within the 

geographical area occupied by the 

species at the time of listing, as well as 

to determine other areas essential to the 

conservation of the species. The 

designation process includes peer 

review and public comment on the 

identified features and areas. This 

process is valuable to land owners and 

managers in developing conservation 

management plans for identified areas, 

as well as any other occupied habitat or 

suitable habitat that may not have been 

included in the Service’s determination 

of essential habitat. 

However, the designation of critical 

habitat does not require that any 

management or recovery actions take 

place on the lands included in the 

designation. Even in cases where 

consultation has been initiated under 

section 7(a)(2) of the Act, the end result 

of consultation is to avoid jeopardy to 

the species and adverse modification of 

its critical habitat, but not specifically to 

manage remaining lands or institute 

recovery actions on remaining lands. 

Conversely, management plans institute 

proactive actions over the lands they 

encompass to remove or reduce known 

threats to a species or its habitat and, 

therefore, in doing so, may implement 

recovery actions. We believe that the 

conservation benefits to a species and 

its habitat that could be achieved 

through the designation of critical 

habitat, in some cases, are less than the 

conservation benefits that could be 

achieved through the implementation of 

a management plan that includes 

species-specific provisions and 

considers enhancement or recovery of 

listed species as the management 

standard over the same lands. 

Consequently, implementation of any 

HCP or management plan that considers 

enhancement or recovery as the 

management standard will often provide 

as much or more benefit than a 

consultation for critical habitat 

designation. 

The information provided in this 

section applies to all the following 

discussions that discuss the benefits of 

inclusion and exclusion of critical 

habitat. 

Conservation Partnerships on NonFederal Lands 

Most federally listed species in the 

United States will not recover without 

the cooperation of non-Federal 

landowners. More than 60 percent of the 

United States is privately owned 

(National Wilderness Institute 1995, p. 

2), and at least 80 percent of endangered 

or threatened species occur either 

partially or solely on private lands 

(Crouse et al. 2002, p. 720). Stein et al. 

(1995, p. 400) found that only about 12 

percent of listed species were found 

almost exclusively on Federal lands (90 

to 100 percent of their known 

occurrences restricted to Federal lands) 

and that 50 percent of federally listed 

species are not known to occur on 

Federal lands at all. 

Given the distribution of listed 

species with respect to land ownership, 

conservation of listed species in many 

parts of the United States is dependent 

upon working partnerships with a wide 

variety of entities and the voluntary 

cooperation of many non-Federal 

landowners (Wilcove and Chen 1998; 

Crouse et al. 2002; James 2002). 

Building partnerships and promoting 

voluntary cooperation of landowners are 

essential to our understanding the status 

of species on non-Federal lands, and 

necessary for us to implement recovery 

actions such as reintroducing listed 

species and restoring and protecting 

habitat. 

Many non-Federal landowners derive 

satisfaction from contributing to 

endangered species recovery. We 

promote these private-sector efforts 

through the Department of the Interior’s 

Cooperative Conservation philosophy. 

Conservation agreements with nonFederal landowners (HCPs, safe harbor 

agreements, other conservation 

agreements, easements, and State and 

local regulations) enhance species 

conservation by extending species 

protections beyond those available 

through section 7(a)(2) consultations. In 

the past decade, we have encouraged 

non-Federal landowners to enter into 

conservation agreements, based on the 

view that we can achieve greater species 

conservation on non-Federal land 

through such partnerships than we can 

through regulatory methods (61 FR 

63854; December 2, 1996). 

Many private landowners, however, 

are wary of the possible consequences of 

attracting endangered species to their 

property. Mounting evidence suggests 

that some regulatory actions by the 

Federal Government, while wellintentioned and required by law, can 

(under certain circumstances) have 

unintended negative consequences for 

the conservation of species on private 

lands (Wilcove et al. 1996; Bean 2002; 

Conner and Mathews 2002; James 2002; 

Koch 2002; Brook et al. 2003). Many 

landowners fear a decline in their 

property value due to real or perceived 

restrictions on land-use options where 

threatened or endangered species are 

found. Consequently, harboring 

endangered species is viewed by many 

landowners as a liability. This 

perception results in anti-conservation 

incentives, because maintaining habitats 

that harbor endangered species 

represents a risk to future economic 

opportunities (Main et al. 1999; Brook et 

al. 2003). 

According to some researchers, the 

designation of critical habitat on private 

lands significantly reduces the 

likelihood that landowners will support 

and carry out conservation actions 

(Main et al. 1999; Bean 2002; Brook et 

al. 2003). The magnitude of this 

outcome is greatly amplified in 

situations where active management 

measures (such as reintroduction, fire 

management, control of invasive 

species) are necessary for species 

conservation (Bean 2002). We believe 

that the judicious use of excluding 

specific areas of non-federally owned 

lands from critical habitat designations 

can contribute to species recovery and 

provide a superior level of conservation 

than critical habitat alone. 

The purpose of designating critical 

habitat is to contribute to the 

conservation of threatened and 

endangered species and the ecosystems 

upon which they depend. The outcome 

of the designation, triggering regulatory 

requirements for actions funded, 

authorized, or carried out by Federal 

agencies under section 7(a)(2) of the 

Act, can sometimes be 

counterproductive to its intended 

purpose on non-Federal lands. Thus the 

benefits of excluding areas that are 

covered by effective partnerships or 

other conservation commitments can 

often be high. 

Benefits of Excluding Lands With HCPs 

or Other Approved Management Plans 

From Critical Habitat 

The benefits of excluding lands with 

HCPs or other approved management 

plans from critical habitat designation 

include relieving landowners, 

communities, and counties of any 

additional regulatory burden that might 

be imposed by a critical habitat 

designation. Most HCPs and other 

conservation plans take many years to 

develop and, upon completion, are 

consistent with the recovery objectives 

mstockstill on PROD1PC66 with RULES2

55000 Federal Register / Vol. 72, No. 187 / Thursday, September 27, 2007 / Rules and Regulations 

for listed species that are covered within 

the plan area. Many conservation plans 

also provide conservation benefits to 

unlisted sensitive species. Imposing an 

additional regulatory review as a result 

of the designation of critical habitat may 

undermine these conservation efforts 

and partnerships designed to 

proactively protect species to ensure 

that listing under the Act will not be 

necessary. Our experience in 

implementing the Act has found that 

designation of critical habitat within the 

boundaries of management plans that 

provide conservation measures for a 

species is a disincentive to many 

entities which are either currently 

developing such plans, or 

contemplating doing so in the future, 

because one of the incentives for 

undertaking conservation is greater ease 

of permitting where listed species will 

be affected. Addition of a new 

regulatory requirement would remove a 

significant incentive for undertaking the 

time and expense of management 

planning. In fact, designating critical 

habitat in areas covered by a pending 

HCP or conservation plan could result 

in the loss of some species’ benefits if 

participants abandon the planning 

process, in part because of the strength 

of the perceived additional regulatory 

compliance that such designation would 

entail. The time and cost of regulatory 

compliance for a critical habitat 

designation do not have to be quantified 

for them to be perceived as additional 

Federal regulatory burden sufficient to 

discourage continued participation in 

developing plans targeting listed 

species’ conservation. 

A related benefit of excluding lands 

within management plans from critical 

habitat designation is the unhindered, 

continued ability it gives us to seek new 

partnerships with future plan 

participants including States, counties, 

local jurisdictions, conservation 

organizations, and private landowners, 

which together can implement 

conservation actions that we would be 

unable to accomplish otherwise. We 

have found that potential participants 

are not inclined to participate in such 

management plans when we designate 

critical habitat within the area that 

would be covered by such a 

management plan, thus having a 

negative effect on our ability to establish 

new partnerships to develop these 

plans; particularly plans that address 

landscape-level conservation of species 

and habitats. By preemptively excluding 

these lands, we preserve our current 

partnerships and encourage additional 

conservation actions in the future. 

Furthermore, both HCPs and Natural 

Communities Conservation Plan 

(NCCP)–HCP applications require 

consultation, which would review the 

effects of all HCP-covered activities that 

might adversely impact the species 

under a jeopardy standard, including 

possibly significant habitat modification 

(see definition of ‘‘harm’’ at 50 CFR 

17.3), even without the critical habitat 

designation. In addition, all other 

Federal actions that may affect the listed 

species would still require consultation 

under section 7(a)(2) of the Act, and we 

would review these actions for possibly 

significant habitat modification in 

accordance with the definition of harm 

referenced above. 

The information provided in the 

previous section applies to all the 

following discussions of benefits of 

inclusion or exclusion of critical habitat. 

Areas Considered for Exclusion Under 

Section 4(b)(2) of the Act 

After considering the following areas 

under section 4(b)(2) of the Act, we are 

excluding them from the critical habitat 

designation for Ceanothus ophiochilus 

and Fremontodendron mexicanum. We 

are excluding approximately 80 ac (33 

ha) of non-Federal lands from the C. 

ophiochilus critical habitat designation 

in subunits 1A and 1B that are within 

the Western Riverside County MSHCP 

Plan Area, and all 133 ac (54 ha) of 

private land in Unit 1 from the 

designation of critical habitat for F. 

mexicanum. A detailed analysis of our 

exclusion of these lands under section 

4(b)(2) of the Act is provided in the 

paragraphs below. 

Relationship of Critical Habitat to 

Habitat Conservation Plan Lands 

Exclusions Under Section 4(b)(2)—of 

the Act 

When performing the required 

analysis under section 4(b)(2) of the Act, 

the existence of a management plan 

(HCPs as well as other types) that 

considers enhancement or recovery of 

listed species as its management 

standard is relevant to our weighing of 

the benefits of inclusion of a particular 

area in the critical habitat designation. 

We considered the following criteria 

when we evaluated the management 

and protection provided by the plans 

relevant to these critical habitat 

designations: 

(1) The plan is complete and provides 

the same or a higher level of protection 

from adverse modification or 

destruction than that provided through 

a consultation under section 7 of the 

Act; 

(2) There is a reasonable expectation 

that the conservation management 

strategies and actions will be 

implemented for the foreseeable future, 

based on past practices, written 

guidance, or regulations; and 

(3) The plan provides conservation 

strategies and measures consistent with 

currently accepted principles of 

conservation biology. 

As discussed in detail below, we 

believe that the Western Riverside 

County Multiple Species Habitat 

Conservation Plan (MSHCP) fulfills 

these criteria with respect to the 

conservation of Ceanothus ophiochilus. 

In addition, although not yet complete, 

the Otay Ranch Phase 2 Resource 

Management Plan developed under the 

San Diego Multiple Species 

Conservation Plan (MSCP) substantially 

fulfills these criteria with respect to the 

conservation of Fremontodendron 

mexicanum. 

Western Riverside County Multiple 

Species Habitat Conservation Plan 

The Western Riverside County 

MSHCP is a large-scale, multijurisdictional HCP that addresses 146 

listed and unlisted ‘‘Covered Species,’’

including Ceanothus ophiochilus, 

within the 1,260,000 ac (510,000 ha) 

Plan Area in western Riverside County. 

Participants in the MSHCP include 14 

cities in western Riverside County; the 

County of Riverside (including the 

Riverside County Flood Control and 

Water Conservation Agency, Riverside 

County Transportation Commission, 

Riverside County Parks and Open Space 

District, and Riverside County Waste 

Department); California Department of 

Parks and Recreation; and the California 

Department of Transportation. The 

MSHCP was designed to establish a 

multi-species conservation program that 

minimizes and mitigates the expected 

loss of habitat and the incidental take of 

Covered Species. On June 22, 2004, the 

Service issued a single incidental take 

permit pursuant to section 10(a)(1)(B) of 

the Act to 22 Permittees under the 

MSHCP for a period of 75 years. The 

Service granted the participating 

jurisdictions ‘‘take authorization’’ of 

listed species in exchange for their 

contribution to the assembly and 

management of the MSHCP 

Conservation Area, which the Service 

determined met the requirements for 

issuance of an incidental take permit 

under section 10 of the Act. 

Collectively, the MSHCP Conservation 

Area includes new reserve lands and 

additional Federal partner lands, 

totaling approximately 500,000 ac 

(202,343 ha). 

The MSHCP will establish 

approximately 153,000 ac (61,916 ha) of 

new conservation lands (Additional 

Reserve Lands) to complement the 

approximate 347,000 ac (140,426 ha) of 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 187 / Thursday, September 27, 2007 / Rules and Regulations 55001 

existing natural and open space areas 

(e.g., State Parks, USFS, and County 

Park lands known as Public/Quasi–

Public (PQP) Lands) in forming the 

approximately 500,000–ac (202,343–ha) 

MSHCP Conservation Area. The precise 

configuration of the 153,000 ac (61,916 

ha) of Additional Reserve Lands is not 

mapped or precisely identified in the 

MSHCP, but rather is based on textual 

descriptions within the bounds of a 

310,000–ac (125,453–ha) Criteria Area 

that is interpreted as implementation of 

the MSHCP proceeds. For Ceanothus 

ophiochilus, critical habitat subunits 1A 

(Vail Lake) and 1B (Agua Tibia 

Wilderness) are located entirely within 

the MSHCP Plan Area on USFS and 

private lands. 

The private lands within these 

subunits are within the Criteria Area 

and are targeted for inclusion within the 

MSHCP Conservation Area as 

Additional Reserve Lands. Specific 

conservation objectives in the MSHCP 

for Ceanothus ophiochilus provide for 

conservation and management of at least 

13,290 ac (5,378 ha) of suitable 

chaparral habitat and at least three core 

locations of this species in the vicinity 

of Vail Lake and the Agua Tibia 

Wilderness. Additionally, the plan 

requires surveys for C. ophiochilus as 

part of the project review process for 

public and private projects where 

suitable habitat is present within a 

defined boundary of the Criteria Area 

(see Criteria Area Species Survey Area 

Map, Figure 6–2 of the MSHCP, Volume 

I). For locations with positive survey 

results, 90 percent of those portions of 

the property that provide long-term 

conservation value for the species will 

be avoided until it is demonstrated that 

the conservation objectives for the 

species are met. We are currently aware 

of only three populations of C. 

ophiochilus in the MSHCP Conservation 

Area. The MSHCP recognizes these 

same three populations. The goal of the 

MSHCP is to conserve a minimum of 

three populations of C. ophiochilus. 

Although the specific location of 

individual target areas for this species 

has yet to be identified, we recognize 

that no other populations of the plant 

have been identified and agree that 

conservation of three populations of this 

plant through the survey requirements, 

avoidance and minimization measures, 

and management for C. ophiochilus (and 

its PCEs) exceed any conservation value 

provided as a result of any regulatory 

protections that may be afforded 

through a critical habitat designation 

over the private lands within these 

subunits. 

We are excluding approximately 80 ac 

(33 ha) of non-Federal lands from the 

Ceanothus ophiochilus critical habitat 

designation in subunits 1A and 1B that 

are within the MSHCP Plan Area under 

section 4(b)(2) of the Act. These nonFederal lands comprise private lands to 

the west of Vail Lake (approximately 76 

ac (31 ha) in subunit 1A) and private 

lands adjacent to the northern boundary 

of the Cleveland National Forest east of 

Woodchuck Road (approximately 4 ac (2 

ha) in subunit 1B). 

The USFS lands within these subunits 

are considered PQP lands under the 

MSHCP and as such are included within 

the overall 500,000 ac (202,343 ha) 

MSHCP Conservation Area. While these 

Federal lands are managed by the USFS 

and are an integral part of the overall 

conservation strategy of the MSHCP, 

federal entities cannot be permittees 

under a section 10(a)(1)(B) permit, and 

the USFS is not bound by the terms of 

the MSHCP. In addition, the rationale 

provided below supporting the 

exclusion of the private lands within 

these subunits is not applicable to 

Federal lands. Therefore, we are not 

excluding USFS lands within subunit 

1B based on the MSHCP. 

Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

We have reviewed and evaluated the 

exclusion from the final designation of 

approximately 80 ac (33 ha) of critical 

habitat on non-Federal lands within the 

MSHCP Plan Area, and have determined 

that the benefits of excluding these nonFederal lands in subunits 1A and 1B 

outweigh the benefits of including these 

lands. The exclusion of these lands from 

critical habitat will help preserve the 

partnerships that we have developed 

with the local jurisdictions and project 

proponents in the development of the 

MSHCP, and aid in fostering additional 

partnerships for the benefit of species 

on non-Federal lands. 

The benefits of excluding these lands 

from critical habitat outweigh the 

minimal benefits of including these 

lands as critical habitat. The PCEs 

required by Ceanothus ophiochilus will 

benefit by the conservation measures 

outlined in the MSHCP. These 

conservation measures include 

protecting and managing the PCEs 

within the MSHCP Conservation Area 

by: Protecting habitat from surfacedisturbing activities; implementing 

specific management and monitoring 

practices to help ensure the 

conservation of C. ophiochilus and its 

PCEs in the Plan Area; maintaining the 

physical and ecological characteristics 

of occupied habitat; and conducting 

surveys and implementing other 

required procedures to ensure 

avoidance of impacts to at least 90 

percent of suitable habitat areas 

determined important to the long-term 

conservation of C. ophiochilus within 

the Criteria Area. The specific area 

identified as Subunit 1A and the private 

lands identified within Subunit 1B are 

subject to the requirements of the 

MSHCP. The benefits from the required 

specific conservation actions, survey 

requirements, avoidance and 

minimization measures, and 

management for C. ophiochilus and its 

PCEs exceed any conservation value 

provided as a result of any regulatory 

protections that may be afforded 

through a critical habitat designation. 

As such, the regulatory benefits of 

including the 80 ac (33 ha) of private 

land within the MSHCP plan area are 

minimal. 

The educational benefits of critical 

habitat derived through informing the 

public of areas important for the longterm conservation of this species would 

also be minimal because these 

educational benefits have been and 

continue to be accomplished through 

materials provided on our Web site at 

http://www.fws.gov/carlsbad/. Further, 

many educational benefits of critical 

habitat designation have already been 

achieved through the overall 

designation process and notice and 

public comment, and will occur 

whether or not these particular subunits 

are designated. 

In addition, the recovery benefits 

associated with designation, identified 

above in the ‘‘Recovery Benefits’’

section, have already been achieved 

through the public review process of the 

proposed critical habitat rule. 

Designation of critical habitat does not 

require that management or recovery 

actions take place on the lands included 

in the designation. Preserving and 

supporting the partnerships that we 

have developed with the local 

jurisdictions and project proponents in 

the implementation the Western 

Riverside County MSHCP will provide a 

greater benefit to the species, as it 

ensures both preservation and 

management of lands we have 

determined essential for the 

conservation of this species. 

Exclusion Will Not Result in Extinction 

of the Species 

We conclude that the exclusion of 80 

ac (33 ha) from the final designation of 

critical habitat for Ceanothus 

ophiochilus will not result in the 

extinction of the species because the 

Western Riverside County MSHCP 

provides for the conservation of this 

species and its PCEs on all known 

occupied areas within the county and 

may also conserve newly discovered 

mstockstill on PROD1PC66 with RULES2

55002 Federal Register / Vol. 72, No. 187 / Thursday, September 27, 2007 / Rules and Regulations 

occurrences. Importantly, as we stated 

in our biological opinion, while some 

loss of modeled habitat for C. 

ophiochilus is anticipated due to 

implementation of the MSHCP, we 

concluded that implementation of the 

plan will not jeopardize the continued 

existence of this species. 

The jeopardy standard of section 7 

and routine implementation of 

conservation measures through the 

section 7 process also provide 

assurances that the species will not go 

extinct. The exclusion of critical habitat 

leaves these protections unchanged 

from those that would exist if the 

excluded areas were designated as 

critical habitat. 

Application of Section 4(b)(2) to Lands 

Within Otay Ranch Which Are Within 

County of San Diego Subarea Plan 

Under the Multiple Species 

Conservation Plan 

All private lands proposed for 

designation of Fremontodendron 

mexicanum are within the area covered 

by the ‘‘Otay Ranch Phase 2 Resource 

Management Plan (Otay Ranch 2002, p. 

260).’’ This plan provides for the phased 

conservation and development of lands 

in southern San Diego County. Lands 

covered by this plan were originally 

owned by a single owner. Following the 

development of the Plan the land was 

divided into sections and sold to 

separate owners. The development and 

associated conservation of these lands is 

currently taking place in a phased 

approach. A large portion of land is 

proposed for conservation purposes, but 

this land is not actually conserved until 

the associated development on the 

section occurs. The land that we 

proposed for designation is part of the 

eastern section of Otay Ranch and 

because it is the furthest from existing 

development it will be one of the last 

phases completed. 

The conservation associated with the 

development of Otay Ranch conserves 

both state and federally-listed species as 

well as sensitive species that do not 

receive any legal protection under the 

Act. The partnerships that the U.S. Fish 

and Wildlife Service, the California 

Department of Fish and Game, and 

County of San Diego (as well as many 

other entities) have formed with the 

private landowners and other 

stakeholders through the work to 

conserve the sensitive biological 

resources on Otay Ranch while at the 

same time allowing for both residential 

and commercial development of the 

land have taken a long time to cultivate. 

These lands are essential to the longterm conservation of several species in 

southern San Diego County, including 

Fremontodendron mexicanum. 

In its current state, the land excluded 

from the designation of critical habitat 

is not being managed under the Otay 

Ranch Phase 2 Resource Management 

Plan; however, ongoing measures are in 

place that protect the primary 

constituent elements for 

Fremontodendron mexicanum. The 

excluded area is fenced and has locked 

gates at access points. This measure 

excludes any unauthorized off-road 

vehicle activity from the area. The 

excluded area is also entirely within the 

area zoned by the County of San Diego 

as open space. This places restrictions 

on any development that would be 

permitted in this area. 

Other areas within the Otay Ranch 

have been conserved as expected and 

we believe a reasonable certainty exists 

that this area will be conserved as 

planned. One of our partners involved 

with the conservation of these lands, the 

County of San Diego, provided 

significant comments on the future 

management that will occur on these 

lands (Pryor 2007, p. 2). 

Fremontodendron mexicanum will 

benefit from adaptive management 

activities that occur within the Otay 

Ranch Preserve. The draft Otay Ranch 

Phase 2 Resource Management Plan 

(Otay Ranch 2002, p. 52, 53, 141, 144) 

describes the following monitoring and 

management activities, which will 

benefit F. mexicanum within the Otay 

Ranch Preserve: 

a. Focused surveys and population 

estimates specifically for F. mexicanum 

(Otay Ranch 2002, p. 141, 144); 

b. Maintenance of existing, highquality resources through the 

prevention of disturbance, including 

controlling access to the preserve, 

prohibiting off-road traffic, enforcing no 

trespassing rules, and curtailing 

activities that degrade resources such as 

grazing, shooting, and illegal dumping 

(Otay Ranch 2002, p. 52); 

c. Monitoring of resources to identify 

changes in the quality and quantity of 

sensitive resources and habitat (Otay 

Ranch 2002, p. 52); 

d. Implementation and monitoring of 

restoration activities as appropriate 

(Otay Ranch 2002, p. 53); 

e. Trail maintenance (Otay Ranch 

2002, p. 53); and 

f. Removal and control of exotic 

species including nonnative plants and 

cowbirds (Otay Ranch 2002, p. 53). 

As discussed below, we have 

excluded all private lands within the 

Otay Ranch from the final critical 

habitat designation within Unit 1 for 

Fremontodendron mexicanum under 

section 4(b)(2) of the Act because the 

benefits of exclusion outweigh the 

benefits of including these lands. 

Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

We have reviewed and evaluated the 

current conservation measures in place 

on the private lands within Otay Ranch 

proposed for designation of critical 

habitat for Fremontodendron 

mexicanum and the future conservation 

measures as described in the ‘‘Otay 

Ranch Phase 2 Resource Management 

Plan (Otay Ranch 2002. pp. 260).’’ We 

have determined that these conservation 

measures provide direct and indirect 

benefits for F. mexicanum (see 

discussion above). We also believe that 

the partnerships that we have developed 

with the landowners and other 

stakeholders have made this 

conservation possible. We believe that 

the designation of critical habitat could 

have a detrimental effect on these 

important partnerships and similar 

future partnerships. 

We have worked with several 

different stakeholders to achieve high 

amounts of conservation on Otay Ranch. 

This large piece of land provides habitat 

for many sensitive species, many that do 

not receive any legal protection under 

the Act, and the conservation of this 

habitat has been essential to the success 

of the large scale habitat conservation 

planning efforts taking place in southern 

San Diego County. Partnerships to 

conserve private land take years to 

foster and it is necessary to build trust 

between the Federal government and 

private land owners. A large part of this 

trust comes from each partner following 

through with its commitments. In this 

case, the owners of Otay Ranch have 

agreed to set aside specific lands for 

conservation. In return they will be 

allowed to develop other areas of their 

private land. The area that we proposed 

for designation as critical habitat is 

entirely within the area which is 

proposed for conservation in the landuse planning for Otay Ranch; however, 

we do not want to impose an additional 

regulatory burden that could 

unnecessarily interfere with these 

important partnerships. The 

conservation of this area is already 

supported by the open space zoning on 

this area under the County of San Diego. 

As other phases of the Otay Ranch 

project have been developed some 

minor changes have occurred with the 

open space designations and 

conservation easements, but for the 

most part large areas that would have 

otherwise been developed have been 

conserved and now contribute to the 

overall conservation envisioned under 

the MSCP and Otay Ranch Specific 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 187 / Thursday, September 27, 2007 / Rules and Regulations 55003 

Plan. We have received comments from 

potential participants expressing their 

concern over areas included in the 

designation of critical habitat that 

overlap areas covered by management 

plans. These potential participants have 

suggested that they are not inclined to 

participate in such management plans, 

thus having a negative impact on our 

ability to establish new partnerships. 

The exclusion of these lands from 

critical habitat will help preserve the 

partnerships that we have developed 

with the land owners of Otay Ranch and 

the County of San Diego and promote 

the conservation of Fremontodendron 

mexicanum on these private lands. 

In comparison, the regulatory benefits 

of including these lands in critical 

habitat are minimal. Based on the 

existing land-use restrictions and the 

future conservation and management of 

these lands under the Otay Ranch Phase 

2 Resource Management Plan, we do not 

anticipate Federal activities occurring 

on these private lands that could 

appreciably reduce the conservation 

value of this habitat for F. mexicanum. 

In addition, the educational and overall 

recovery benefits of critical habitat 

designation have largely already been 

accomplished in the rulemaking process 

through informing the public of areas 

important for the long-term 

conservation of Fremontodendron 

mexicanum. Such benefits can continue 

to be achieved through the publication 

of materials regarding this species 

provided on our Web site. 

Therefore, we have determined that 

the benefits of excluding the identified 

133 ac (54 ha) of private land from the 

critical habitat designation outweigh the 

benefits of including these lands in 

critical habitat. 

Exclusion Will Not Result in Extinction 

of the Species 

Exclusion of these 133 ac (54 ha) of 

non-Federal lands from the final 

designation of critical habitat will not 

result in the extinction of 

Fremontodendron mexicanum because 

these lands will be permanently 

conserved and managed in a manner 

that clearly benefits this species. 

The jeopardy standard of section 7 

and routine implementation of habitat 

protection through the section 7 process 

also provide assurances that the species 

will not go extinct. Although F. 

mexicanum is not a covered species 

under the MSCP, F. mexicanum was 

evaluated in the biological opinion for 

the MSCP, and we found that 

implementation of the plan would not 

jeopardize this species (Service 1998). 

The exclusion of critical habitat leaves 

these protections unchanged from those 

that would exist if these areas were 

designated as critical habitat. 

Economics 

Section 4(b)(2) of the Act allows the 

Secretary to exclude areas from critical 

habitat for economic reasons if it is 

determined that the benefits of such 

exclusion exceed the benefits of 

designating the area as critical habitat. 

However, this exclusion cannot occur if 

it will result in the extinction of the 

species concerned. 

Following the publication of the 

proposed critical habitat designation, 

we conducted an economic analysis to 

estimate the potential economic effect of 

the designation. The draft analysis was 

made available for public review on 

April 5, 2007 (72 FR 16756). We 

accepted comments on the draft analysis 

until May 7, 2007. A final analysis of 

the potential economic effects of the 

proposed designation was then 

developed taking into consideration the 

public comments and any new 

information. 

The primary purpose of the economic 

analysis is to estimate the potential 

economic impacts associated with the 

designation of critical habitat for 

Ceanothus ophiochilus and 

Fremontodendron mexicanum. The 

information is intended to assist the 

Secretary in making decisions about 

whether the benefits of excluding 

particular areas from the designation 

outweigh the benefits of including those 

areas in the designation. This economic 

analysis considers the economic 

efficiency effects that may result from 

the designation, including habitat 

protections that may be co-extensive 

with the listing of the species. It also 

addresses distribution of impacts, 

including an assessment of the potential 

effects on small entities and the energy 

industry. This information can be used 

by the Secretary to assess whether the 

effects of the designation might unduly 

burden a particular group or economic 

sector. 

The analysis focuses on the direct and 

indirect costs of the rule. However, 

economic impacts to land use activities 

can exist in the absence of critical 

habitat. These impacts may result from, 

for example, local zoning laws, State 

and natural resource laws, and 

enforceable management plans and best 

management practices applied by other 

State and Federal agencies. Economic 

impacts that result from these types of 

protections are not included in the 

analysis as they are considered to be 

part of the regulatory and policy 

baseline. 

The economic analysis estimates the 

foreseeable potential economic impacts 

of the proposed critical habitat 

designation and other conservationrelated actions for these species on 

government agencies and private 

businesses and individuals. The 

economic analysis identifies potential 

costs will be $385,000 to $659,000 in 

undiscounted dollars over a 20-year 

period as a result of the proposed 

designation of critical habitat, including 

those costs coextensive with listing and 

recovery. Discounted future costs are 

estimated to be $325,000 to $559,000 

($22,000 to $38,000 annualized) at a 3 

percent discount rate, or $272,000 to 

$471,000 ($26,000 to $44,000 

annualized) at a 7 percent discount rate. 

The economic analysis considers the 

potential economic effects of actions 

relating to the conservation of 

Ceanothus ophiochilus and 

Fremontodendron mexicanum, 

including costs associated with sections 

4, 7, and 10 of the Act, and including 

those attributable to the designation of 

critical habitat. It further considers the 

economic effects of protective measures 

taken as a result of other Federal, State, 

and local laws that aid habitat 

conservation for C. ophiochilus and F. 

mexicanum in areas containing features 

essential to the conservation of the 

species. The analysis considers both 

economic efficiency and distributional 

effects. In the case of habitat 

conservation, efficiency effects generally 

reflect the ‘‘opportunity costs’’

associated with the commitment of 

resources to comply with habitat 

protection measures (such as lost 

economic opportunities associated with 

restrictions on land use). 

The analysis also addresses how 

potential economic impacts are likely to 

be distributed, including an assessment 

of any local or regional impacts of 

habitat conservation and the potential 

effects of conservation activities on 

small entities and the energy industry. 

This information can be used by 

decision-makers to assess whether the 

effects of the designation might unduly 

burden a particular group or economic 

sector. Finally, this analysis looks 

retrospectively at costs that have been 

incurred since the date Ceanothus 

ophiochilus and Fremontodendron 

mexicanum were listed as endangered 

and threatened, respectively (October 

13, 1998; 63 FR 54956), and considers 

those costs that may occur in the 20 

years following a designation of critical 

habitat. After consideration of the 

impacts under section 4(b)(2) of the Act, 

we have not excluded any areas from 

the final critical habitat designation 

based on the identified economic 

impacts. 

mstockstill on PROD1PC66 with RULES2

55004 Federal Register / Vol. 72, No. 187 / Thursday, September 27, 2007 / Rules and Regulations 

A copy of the final economic analysis 

with supporting documents are 

included in our administrative file and 

may be obtained by contacting the 

Carlsbad Fish and Wildlife Office, 

Branch of Endangered Species (see 

ADDRESSES) or by downloading from the 

Internet at http://www.fws.gov/ 

carlsbad/. 

Required Determinations 

Regulatory Planning and Review 

In accordance with Executive Order 

(E.O.) 12866, this document is a 

significant rule in that it may raise novel 

legal and policy issues. On the basis of 

our economic analyses of the critical 

habitat for these species, we have 

determined that the final designations of 

critical habitat for each species will not 

have an annual effect on the economy 

of $100 million or more or affect the 

economy in a material way. The 

economic analysis identifies potential 

costs will be $385,000 to $659,000 in 

undiscounted dollars over a 20-year 

period as a result of the proposed 

designation of critical habitat, including 

those costs coextensive with listing and 

recovery. Discounted future costs are 

estimated to be $325,000 to $559,000 

($22,000 to $38,000 annualized) at a 3 

percent discount rate, or $272,000 to 

$471,000 ($26,000 to $44,000 

annualized) at a 7 percent discount rate. 

We used this analysis to meet the 

requirement of section 4(b)(2) of the Act 

to determine the economic 

consequences of designating the specific 

areas as critical habitat. We also used it 

in determining whether to exclude any 

area from critical habitat, as provided 

for under section 4(b)(2). If we 

determine that the benefits of excluding 

a particular area outweigh the benefits 

of specifying such area as part of the 

critical habitat, we may exclude the area 

unless we determine, based on the best 

scientific data available, that the failure 

to designate such area as critical habitat 

will result in the extinction of the 

species. Due to the tight timeline for 

publication in the Federal Register, the 

Office of Management and Budget 

(OMB) has not formally reviewed this 

rule. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(RFA) (as amended by the Small 

Business Regulatory Enforcement 

Fairness Act (SBREFA) of 1996), 

whenever an agency must publish a 

notice of rulemaking for any proposed 

or final rule, it must prepare and make 

available for public comment a 

regulatory flexibility analysis that 

describes the effect of the rule on small 

entities (i.e., small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of an agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The SBREFA amended the RFA 

to require Federal agencies to provide a 

statement of factual basis for certifying 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. SBREFA 

amended RFA to require Federal 

agencies to provide a certification 

statement of the factual basis for 

certifying that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Small entities include small 

organizations, such as independent 

nonprofit organizations; small 

governmental jurisdictions, including 

school boards and city and town 

governments that serve fewer than 

50,000 residents; as well as small 

businesses. Small businesses include 

manufacturing and mining concerns 

with fewer than 500 employees, 

wholesale trade entities with fewer than 

100 employees, retail and service 

businesses with less than $5 million in 

annual sales, general and heavy 

construction businesses with less than 

$27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

consider the types of activities that 

might trigger regulatory impacts under 

this rule, as well as the types of project 

modifications that may result. In 

general, the term ‘‘significant economic 

impact’’ is meant to apply to a typical 

small business firm’s business 

operations. 

To determine if the rule could 

significantly affect a substantial number 

of small entities, we consider the 

number of small entities affected within 

particular types of economic activities 

(e.g., housing development, grazing, oil 

and gas production, timber harvesting). 

We apply the ‘‘substantial number’’ test 

individually to each industry to 

determine if certification is appropriate. 

However, the SBREFA does not 

explicitly define ‘‘substantial number’’

or ‘‘significant economic impact.’’

Consequently, to assess whether a 

‘‘substantial number’’ of small entities is 

affected by this designation, this 

analysis considers the relative number 

of small entities likely to be impacted in 

an area. In some circumstances, 

especially with critical habitat 

designations of limited extent, we may 

aggregate across all industries and 

consider whether the total number of 

small entities affected is substantial. In 

estimating the number of small entities 

potentially affected, we also consider 

whether their activities have any 

Federal involvement. 

Designation of critical habitat only 

affects activities conducted, funded, or 

permitted by Federal agencies. Some 

kinds of activities are unlikely to have 

any Federal involvement and so will not 

be affected by critical habitat 

designation. In areas where the species 

is present, Federal agencies already are 

required to consult with us under 

section 7 of the Act on activities they 

fund, permit, or implement that may 

affect Ceanothus ophiochilus and 

Fremontodendron mexicanum. Federal 

agencies also must consult with us if 

their activities may affect critical 

habitat. Designation of critical habitat, 

therefore, could result in an additional 

economic impact on small entities due 

to the requirement to reinitiate 

consultation for ongoing Federal 

activities. 

The draft economic analysis analyzed 

the possible impacts to small entities in 

the following categories: Development, 

fire management on Federal lands, alien 

plant species management on Federal 

lands, and other activities on Federal 

lands. The economic analysis concluded 

that conservation activities would not 

affect small entities in the above 

categories (Service 2007, Appendix A, 

p. A–1). There are two private land 

owners in Riverside County that may 

need to undertake fire management 

activities and/or management of alien 

plant species. The economic cost of fire 

management was estimated at $3,000 to 

$4,000 per year and the economic cost 

of alien plant species management was 

estimated at $1,000 to $2,000 per year. 

It is unclear if these private landowners 

qualify as small businesses. 

In general, two different mechanisms 

in section 7(a)(2) consultations could 

lead to additional regulatory 

requirements for approximately four 

small businesses, on average, that may 

be required to consult with us regarding 

their project’s impact on Ceanothus 

ophiochilus and Fremontodendron 

mexicanum and their habitat. First, if 

we conclude, in a biological opinion, 

that a proposed action is likely to 

jeopardize the continued existence of a 

species or adversely modify its critical 

habitat, we can offer ‘‘reasonable and 

prudent alternatives.’’ Reasonable and 

prudent alternatives are alternative 

actions that can be implemented in a 

manner consistent with the scope of the 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 187 / Thursday, September 27, 2007 / Rules and Regulations 55005 

Federal agency’s legal authority and 

jurisdiction, that are economically and 

technologically feasible, and that would 

avoid jeopardizing the continued 

existence of listed species or adversely 

modifying critical habitat. A Federal 

agency and an applicant may elect to 

implement a reasonable and prudent 

alternative associated with a biological 

opinion that has found jeopardy or 

adverse modification of critical habitat. 

An agency or applicant could 

alternatively choose to seek an 

exemption from the requirements of the 

Act or proceed without implementing 

the reasonable and prudent alternative. 

However, unless an exemption were 

obtained, the Federal agency or 

applicant would be at risk of violating 

section 7(a)(2) of the Act if it chose to 

proceed without implementing the 

reasonable and prudent alternatives. 

Second, if we find that a proposed 

action is not likely to jeopardize the 

continued existence of a plant species or 

adversely modify its critical habitat, we 

may identify discretionary conservation 

recommendations designed to minimize 

or avoid the adverse effects of a 

proposed action on listed species or 

critical habitat, help implement 

recovery plans, or develop information 

that could contribute to the recovery of 

the species. 

Based on our experience with 

consultations pursuant to section 7 of 

the Act for all listed species, virtually 

all projects—including those that, in 

their initial proposed form, would result 

in jeopardy or adverse modification 

determinations in section 7(a)(2) 

consultations—can be implemented 

successfully with, at most, the adoption 

of reasonable and prudent alternatives. 

These measures, by definition, must be 

economically feasible and within the 

scope of authority of the Federal agency 

involved in the consultation. We can 

only describe the general kinds of 

actions that may be identified in future 

reasonable and prudent alternatives. 

These are based on our understanding of 

the needs of the species and the threats 

they face, as described in the final 

listing rule and this critical habitat 

designation. Within the final critical 

habitat units, the types of Federal 

actions or authorized activities that we 

have identified as potential concerns 

are: 

(1) Land management activities, like 

fire suppression, grazing, mining, and 

recreation authorized by the USFS and 

BLM; 

(2) Restoration activities designed to 

mitigate or repair the effects of fire 

suppression; and 

(3) Activities related to road use and 

maintenance authorized or conducted 

by USFS, BLM and the Department of 

Homeland Security. 

The most likely Federal involvement 

could include projects that require 

permits to conduct activities on USFS or 

BLM land. It is likely that a developer 

or other project proponent could modify 

a project or take measures to protect 

Ceanothus ophiochilus and 

Fremontodendron mexicanum. The 

kinds of actions that may be included if 

future reasonable and prudent 

alternatives become necessary include 

conservation set-asides, management of 

competing nonnative species, 

restoration of degraded habitat, and 

regular monitoring. These are based on 

our understanding of the needs of the 

species and the threats they face, as 

described in the final listing rule and 

proposed critical habitat designation. 

These measures are not likely to result 

in a significant economic impact to 

project proponents. 

In summary, we have considered 

whether this would result in a 

significant economic effect on a 

substantial number of small entities. 

Federal involvement, and thus section 

7(a)(2) consultations, would be limited 

to a subset of the area designated. 

Currently, we are unaware of any small 

businesses that use the areas designated 

as critical habitat for economic 

purposes. Therefore, based on the above 

reasoning and the currently available 

information, we certify that the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. A regulatory flexibility analysis 

is not required. 

Small Business Regulatory Enforcement 

Fairness Act (5 U.S.C 801 et seq.) 

Under SBREFA, this rule is not a 

major rule. Our detailed assessment of 

the economic effects of this designation 

is described in the economic analysis. 

Based on the effects identified in the 

economic analysis, we believe that this 

rule will not have an annual effect on 

the economy of $100 million or more, 

will not cause a major increase in costs 

or prices for consumers, and will not 

have significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S.-based enterprises to compete 

with foreign-based enterprises. Refer to 

the final economic analysis for a 

discussion of the effects of this 

determination. 

Executive Order 13211 

On May 18, 2001, the President issued 

Executive Order 13211 (Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use) on regulations that 

significantly affect energy supply, 

distribution, and use. Executive Order 

13211 requires agencies to prepare 

Statements of Energy Effects when 

undertaking certain actions. This final 

rule to designate critical habitat for 

Ceanothus ophiochilus and 

Fremontodendron mexicanum is not 

expected to significantly affect energy 

supplies, distribution, or use because 

there are no existing energy projects 

within the area designated as critical 

habitat for either of these two species. 

Therefore, this action is not a significant 

energy action and no Statement of 

Energy Effects is required. 

Takings 

In accordance with Executive Order 

12630 (‘‘Government Actions and 

Interference with Constitutionally 

Protected Private Property Rights’’), we 

have analyzed the potential takings 

implications of designating critical 

habitat for this rule in a takings 

implication assessment. The takings 

implications assessment concludes that 

this final designation of critical habitat 

does not pose significant takings 

implications. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.), we make the following findings: 

(a) This rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, or 

Tribal governments, or the private sector 

and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or Tribal 

governments’’ with two exceptions. It 

excludes ‘‘a condition of federal 

assistance.’’ It also excludes ‘‘a duty 

arising from participation in a voluntary 

Federal program,’’ unless the regulation 

‘‘relates to a then-existing Federal 

program under which $500,000,000 or 

more is provided annually to State, 

local, and Tribal governments under 

entitlement authority,’’ if the provision 

would ‘‘increase the stringency of 

conditions of assistance’’ or ‘‘place caps 

upon, or otherwise decrease, the Federal 

Government’s responsibility to provide 

funding’’ and the State, local, or Tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. (At the time of enactment, 

these entitlement programs were: 

Medicaid; AFDC work programs; Child 

mstockstill on PROD1PC66 with RULES2

55006 Federal Register / Vol. 72, No. 187 / Thursday, September 27, 2007 / Rules and Regulations 

Nutrition; Food Stamps; Social Services 

Block Grants; Vocational Rehabilitation 

State Grants; Foster Care, Adoption 

Assistance, and Independent Living; 

Family Support Welfare Services; and 

Child Support Enforcement.) ‘‘Federal 

private sector mandate’’ includes a 

regulation that ‘‘would impose an 

enforceable duty upon the private 

sector, except (i) A condition of Federal 

assistance; or (ii) a duty arising from 

participation in a voluntary Federal 

program.’’

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities who receive Federal 

funding, assistance, permits or 

otherwise require approval or 

authorization from a Federal agency for 

an action may be indirectly impacted by 

the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply, nor would critical habitat 

shift the costs of the large entitlement 

programs listed above onto State 

governments. 

(b) We do not believe that this rule 

will significantly or uniquely affect 

small governments because it will not 

produce a Federal mandate of $100 

million or greater in any year, that is, it 

is not a ‘‘significant regulatory action’’

under the Unfunded Mandates Reform 

Act. The designation of critical habitat 

imposes no obligations on State or local 

governments. As such, a Small 

Government Agency Plan is not 

required. 

Federalism 

In accordance with Executive Order 

13132 (Federalism), the rule does not 

have significant Federalism effects. A 

Federalism assessment is not required. 

In keeping with the Department of the 

Interior and Department of Commerce 

policy, we requested information from, 

and coordinated development of, this 

final critical habitat designation with 

appropriate State resource agencies in 

California. Only federal lands are being 

designated as critical habitat for 

Ceanothus ophiochilus and 

Fremontodendron mexicanum; 

therefore, the designation is unlikely to 

impact State and local governments and 

their activities. The designation may 

have some benefit to these governments 

in that the areas that contain the 

features essential to the conservation of 

the species are more clearly defined, 

and the primary constituent elements of 

the habitat necessary to the conservation 

of the species are specifically identified. 

While making this definition and 

identification does not alter where and 

what federally sponsored activities may 

occur, it may assist these local 

governments in long-range planning 

(rather than waiting for case-by-case 

section 7(a)(2) consultations to occur). 

Civil Justice Reform 

In accordance with Executive Order 

12988 (Civil Justice Reform), the Office 

of the Solicitor has determined that the 

rule does not unduly burden the judicial 

system and meets the requirements of 

sections 3(a) and 3(b)(2) of the Order. 

We are designating critical habitat in 

accordance with the provisions of 

section 4 of the Act. This final rule uses 

standard property descriptions and 

identifies the primary constituent 

elements within the designated areas to 

assist the public in understanding the 

habitat needs of Ceanothus ophiochilus 

and Fremontodendron mexicanum. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act. This rule will not 

impose recordkeeping or reporting 

requirements on State or local 

governments, individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

(NEPA) (42 U.S.C. 4321 et. seq.) 

It is our position that, outside the 

jurisdiction of the Tenth Federal Circuit, 

we do not need to prepare 

environmental analyses as defined by 

the NEPA in connection with 

designating critical habitat under the 

Act. We published a notice outlining 

our reasons for this determination in the 

Federal Register on October 25, 1983 

(48 FR 49244). This assertion was 

upheld in the courts of the Ninth Circuit 

Court of Appeals (Douglas County v. 

Babbitt, 48 F.3d 1495 (9th Cir. Ore. 

1995), cert. denied 516 U.S. 1042 (1996). 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), Executive 

Order 13175, and the Department of the 

Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. We 

have determined that there are no Tribal 

lands that were occupied at the time of 

listing and that contain the features 

essential for the conservation of 

Ceanothus ophiochilus and 

Fremontodendron mexicanum, and no 

Tribal lands that are unoccupied areas 

essential for the conservation of the 

species. Therefore, critical habitat for 

Ceanothus ophiochilus and 

Fremontodendron mexicanum has not 

been designated on Tribal lands. 

References Cited 

A complete list of all references cited 

in this rulemaking is available upon 

request from the Field Supervisor, 

Carlsbad Fish and Wildlife Office (see 

ADDRESSES section). 

Author(s) 

The primary author of this package is 

staff of the Carlsbad Fish and Wildlife 

Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Regulation Promulgation 

■ Accordingly, we amend part 17, 

subchapter B of chapter I, title 50 of the 

Code of Federal Regulations, as set forth 

below: 

PART 17—[AMENDED] 

■ 1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat. 3500; unless otherwise noted. 

■ 2. In § 17.12(h), revise the entry for 

‘‘Ceanothus ophiochilus’’ and the entry 

for ‘‘Fremontodendron mexicanum’’

under ‘‘FLOWERING PLANTS’’ to read 

as follows: 

§ 17.12 Endangered and threatened plants. 

* * * * * 

(h) * * * 

mstockstill on PROD1PC66 with RULES2

Federal Register / Vol. 72, No. 187 / Thursday, September 27, 2007 / Rules and Regulations 55007 

Species 

Historic range Family Status When 

listed 

Critical 

habitat 

Special 

rules Scientific name Common name 

FLOWERING PLANTS 

* * * * * * * 

Ceanothus 

ophiochilus.

Vail Lake ceanothus U.S.A. (CA) ............... Rhamnaceae ............. T 648 17.96(a) NA 

* * * * * * * 

Fremontodendron 

mexicanum.

Mexican flannelbush U.S.A. (CA), Mexico Sterculiaceae ............ E 648 17.96(a) NA 

* * * * * * * 

■ 3. Amend § 17.96(a) as follows: 

■ a. By adding an entry for Ceanothus 

ophiochilus (Vail Lake ceanothus) in 

alphabetical order under family 

Rhamnaceae; 

■ b. By adding Family Sterculiaceae in 

alphabetical order by family name; and 

■ c. By adding an entry for 

Fremontodendron mexicanum (Mexican 

flannelbush) under Family 

Sterculiaceae. 

§ 17.96 Critical habitat—plants. 

(a) Flowering plants. 

* * * * * 

Family Rhamnaceae: Ceanothus 

ophiochilus (Vail Lake ceanothus). 

(1) Critical habitat units are depicted 

for Riverside County, California, on the 

maps below. 

(2) The primary constituent elements 

(PCEs) of critical habitat for Ceanothus 

ophiochilus are the habitat components 

that provide: 

(i) Flat to gently sloping north to 

northeast facing ridge tops with slopes 

in the range of 0 to 40 percent slope that 

provide the appropriate solar exposure 

for seedling establishment and growth. 

(ii) Soils formed from metavolcanic 

and ultra-basic parent materials and 

deeply weathered gabbro or pyroxeniterich outcrops that provide nutrients and 

space for growth and reproduction. 

Specifically in the areas that Ceanothus 

ophiochilus is found, the soils are: 

(A) Ramona, Cienaba, Las Posas, and 

Vista series in the Agua Tibia 

Wilderness; and 

(B) Cajalco series in the vicinity of 

Vail Lake. 

(iii) Chamise chaparral or mixed 

chamise-ceanothus-arctostaphylos 

chaparral at elevations of 2,000 feet to 

3,000 feet (610 meters to 914 meters) 

that provide the appropriate canopy 

cover and elevation requirements for 

growth and reproduction. 

(3) Critical habitat does not include 

man-made structures existing on the 

effective date of this rule and not 

containing one or more of the primary 

constituent elements, such as buildings, 

aqueducts, airports, and roads, and the 

land on which such structures are 

located. 

(4) Data layers defining map units 

were created on a base of USGS 

1:24,0000 maps, and critical habitat 

units were then mapped using Universal 

Transverse Mercator (UTM) coordinates. 

(5) Unit 1. 

(i) Subunit 1B for Ceanothus 

ophiochilus, Agua Tibia Subunit, 

Riverside County, California. From 

USGS 1:24,000 quadrangles Pechanga 

and Vail Lake, lands bounded by the 

following UTM NAD27 coordinates 

(E,N): 499902,3701154; 499909, 

3701222; 499950, 3701238; 500022, 

3701235; 500060, 3701218; 500091, 

3701184; 500127, 3701138; 500158, 

3701092; 500191, 3701048; 500226, 

3701010; 500247, 3700998; 500262, 

3700990; 500273, 3700981; 500294, 

3700965; 500326, 3700909; 500351, 

3700872; 500353, 3700869; 500362, 

3700855; 500375, 3700824; 500398, 

3700735; 500400, 3700646; 500370, 

3700546; 500308, 3700359; 500293, 

3700272; 500173, 3700102; 500057, 

3699889; 500008, 3699730; 499990, 

3699595; 499988, 3699460; 500022, 

3699376; 500045, 3699326; 500113, 

3699213; 500179, 3699040; 500199, 

3698902; 500173, 3698801; 500010, 

3698618; 499966, 3698566; 499920, 

3698544; 499823, 3698518; 499757, 

3698516; 499704, 3698537; 499671, 

3698570; 499655, 3698612; 499671, 

3698670; 499783, 3698843; 499834, 

3698968; 499840, 3699020; 499840, 

3699090; 499819, 3699185; 499755, 

3699338; 499731, 3699474; 499757, 

3699750; 499838, 3699993; 499974, 

3700214; 500037, 3700349; 500055, 

3700453; 500063, 3700594; 500033, 

3700813; 499984, 3700976; 499924, 

3701105; thence returning to 499902, 

3701154. 

(ii) Map of Unit 1, subunit 1B (Map 

1) follows: 

BILLING CODE 4310–55–P 

mstockstill on PROD1PC66 with RULES2

55008 Federal Register / Vol. 72, No. 187 / Thursday, September 27, 2007 / Rules and Regulations 


mstockstill on PROD1PC66 with RULES2ER27SE07.000</GPH>
Federal Register / Vol. 72, No. 187 / Thursday, September 27, 2007 / Rules and Regulations 55009 

Family Sterculiaceae: 

Fremontodendron mexicanum (Mexican 

flannelbush). 

(1) Critical habitat units are depicted 

for San Diego County, California, on the 

maps below. 

(2) The primary constituent elements 

of critical habitat for Fremontodendron 

mexicanum are the habitat components 

that provide: 

(i) Alluvial terraces, benches, and 

associated slopes within 500 feet (152 

meters) of streams, creeks, and 

ephemeral drainages where water flows 

primarily after peak seasonal rains with 

a gradient ranging from 3 to 7 percent; 

and stabilized north- to east-facing 

slopes associated with steep (9 to 70 

percent) slopes and canyons that 

provide space for growth and 

reproduction. 

(ii) Silty loam soils derived from 

metavolcanic and metabasic bedrock, 

mapped as San Miguel—Exchequer 

Association soil series that provides the 

nutrients and substrate with adequate 

drainage to support seedling 

establishment and growth. 

(iii) Open Cupressus forbesii and 

Platanus racemosa stands at elevations 

of 900 feet (274 meters) to 3,000 feet 

(914 meters) within a matrix of 

chaparral (such as Dendromecon rigida 

ssp. rigida and Malosma laurina) and 

riparian vegetation that provides 

adequate space for growth and 

reproduction. 

(3) Critical habitat does not include 

manmade structures existing on the 

effective date of this rule and not 

containing one or more of the primary 

constituent elements, such as buildings, 

aqueducts, airports, and roads, and the 

land on which such structures are 

located. 

(4) Data layers defining map units 

were created on a base of USGS 1:24,000 

maps, and critical habitat units were 

then mapped using Universal 

Transverse Mercator (UTM) coordinates. 

(5) Unit 1. 

(i) Subunit 1A for Fremontodendron 

mexicanum, Cedar Canyon Subunit, San 

Diego County, California. From USGS 

1:24,000 quadrangles Dulzura and Otay 

Mountain, lands bounded by the 

following UTM NAD27 coordinates 

(E,N): 515014, 3611487; 515155, 

3611552; 515695, 3611495; 515848, 

3611474; 516142, 3611376; 516372, 

3611063; 516368, 3610565; 516091, 

3610192; 516251, 3609616; 516229, 

3608802; 516080, 3608793; 516038, 

3608958; 516013, 3609134; 516008, 

3609701; 515493, 3609581; 515407, 

3609585; 515418, 3609710; 515497, 

3609804; 515663, 3609889; 515878, 

3609887; 515904, 3610258; 515952, 

3610432; 515921, 3610608; 516125, 

3610698; 515989, 3611007; 515889, 

3611230; 515567, 3611277; 515159, 

3611261; 515064, 3611374; thence 

returning to 515014, 3611487. 

(ii) Map depicting Subunit 1A is 

located at paragraph (5)(iv) of this entry. 

(iii) Subunit 1B for Fremontodendron 

mexicanum, Little Cedar Canyon 

Subunit, San Diego County, California. 

From USGS 1:24,000 quadrangles 

Dulzura and Otay Mountain, lands 

bounded by the following UTM NAD27 

coordinates (E,N): 512964, 3610810; 

513099, 3610671; 513104, 3609924; 

513252, 3609684; 513232, 3609584; 

513344, 3609302; 513278, 3609139; 

513174, 3609122; 512911, 3609699; 

512854, 3610125; 512821, 3610402; 

512834, 3610662; thence returning to 

512964, 3610810. 

(iv) Map of Subunits 1A and 1B (Map 

2) follows: 

mstockstill on PROD1PC66 with RULES2

55010 Federal Register / Vol. 72, No. 187 / Thursday, September 27, 2007 / Rules and Regulations 

* * * * * Dated: May 19, 2007. 

David M. Verhey, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

Editorial Note: This document was 

received at the Office of the Federal Register 

on September 20, 2007. 

[FR Doc. 07–4723 Filed 9–26–07; 8:45 am] 

BILLING CODE 4310–55–C 


mstockstill on PROD1PC66 with RULES2ER27SE07.001</GPH>